[Redacted], Curt R., 1 Complainant,v.Alejandro N. Mayorkas, Secretary, Department of Homeland Security (Customs and Border Protection), Agency.

Equal Employment Opportunity Commission

May 9, 2022

Appeal No. 2021000891 (E.E.O.C. May. 9, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Curt R.,1 Complainant, v. Alejandro N. Mayorkas, Secretary, Department of Homeland Security (Customs and Border Protection), Agency. Appeal No. 2021000891 Agency No. HS-CBP-02706-2018 DECISION On October 30, 2020, 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 September 28, 2020 final decision 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. For the following reasons, the Commission AFFIRMS the Agency’s final decision. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Customs and Border Protection Officer (CBPO), GS-1895-12, assigned to the Detroit Port of Entry in Detroit, Michigan. On December 6, 2018, Complainant filed an EEO complaint alleging that the Agency subjected him to a hostile work environment based on his national origin (American/perceived Middle Eastern) when: (1) in 2010, 2012, and again in September 2018, on various instances, a Chief Custom Border Protection Officer (Chief1) would yell and use profanity toward or near Complainant; (2) in early 2018, when Complainant was serving in the role as Team Lead, Chief1 did not allow Complainant to make the daily shift assignments for the staff on duty during his 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. 2021000891 2 shift, which is a task typically assigned to the Team Lead; (3) on May 6, 2018, Chief1 and three supervisory CBPOs (SCBPO1, SCBPO2 and SCBPO3), laughed at Complainant while passing around a cellphone sharing an image, which Complainant believes was a picture of him or meme about him, and made jokes about Complainant; (4) on May 6, 2018, Chief1 sent an email message to approximately 33 management officials informing them that Complainant was restricted from working primary and secondary inspections because he refused a direct order, and subsequently, on May 13, 2018, sent a follow-up email message advising all management officials Complainant would resume all duties after Complainant was given further direction regarding the Port’s Visa Waiver Program; (5) on May 10, 2018, Complainant received a copy of an email message between Chief1 and another Chief Custom Border Protection Officer (Chief2) wherein, Chief1 inquired about Complainant’s prior discipline and stated “I do not think we have a case with [Complainant];” (6) in or around the month of July 2018, Chief1 denied Complainant the ability to park in a fenced-in secured area, where other employees parked, and instructed a supervisory CBPO (SCBPO4) to write him up if he parked in the area; (7) in or about September 14, 2018, on about five occurrences, SCBPO2 referred to Complainant as “Jihad” instead of his last name; (8) on September 14, 2018, Complainant was issued a proposal for a three-day suspension for failure to follow supervisory instructions, which was signed by an Assistant Port Director (APD1); (9) during the week of September 17, 2018, after Complainant asked Chief1 if he had a “personal agenda” against Complainant, Chief1 asked to speak with Complainant, privately in his office; whereby, Chief1 said that if he was going to f**k him over, he would do it to Complainant’s face. 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 EEOC Administrative Judge. In accordance with Complainant’s request, the Agency issued a final decision (FAD) pursuant to 29 C.F.R. § 1614.110(b). In the decision, the Agency concluded that Complainant failed to prove that Agency management subjected him to discrimination as alleged. FACTUAL BACKGROUND Claims 1 and 9 - Profanity Complainant alleged that Chief1 used profanity toward him in 2010, 2012, and 2018. He also alleged that Chief1 stated “we can’t have someone like him being promoted like his Dad.” Complainant further asserted that after a three-day suspension was proposed against Complainant for his failure to follow direction, Chief1 called him into his office and stated that “if I wanted to screw or f**k you over, I would do it to your face.” Chief1 denied that he made this specific comment and further denied using profanity against Complainant. 2021000891 3 Claim 2 - Team Lead Duties Limited Complainant alleged that Chief1 instructed SCBPO3 not to let Complainant choose the daily shift assignments for other officers when he was a Team Lead. Complainant also alleges that SCBPO3 told him “[Chief1] is up to something and I will do it.” Chief1 testified that he did not even know if Complainant was ever Team Lead, and that Team Lead duties are typically assigned by supervisors. The record shows that Chief1 requested supervisors make assignments instead of the Team Lead on occasion, but that was when he noticed work assignments becoming routine or when more engagement is needed on the part of the supervisor. SCBPO3 had no recollection of Complainant’s duties being restricted at all, and said he was not a part of any decision or action to restrict Complainant from duty. Claim 3- Supervisors Passing a Phone and Laughing at Complainant Complainant alleged that during discussions surrounding a May 6, 2018 inspection, Chief1, SCBPO1, SCBPO2, and SCBPO3 were passing around a cellular phone sharing an image, which he believed to be a meme or photo of him and laughing. However, Complainant admitted he never saw the image on the phone. Each supervisor allegedly involved denied making fun of Complainant and, also denied the existence of a meme or photo. Complainant also claimed that his direct supervisor (SCBPO5) was present at the time but did not witness a cellular phone being passed around. Complainant asserted that after this alleged incident, a coworker (C1) told him that he did not like how Chief1, SCBPO1, SCBPO2 and SCBPO3 ganged up on him. However, C1 denied having witnessed this incident or hearing anything about the alleged incident raised in this claim. Claim 4 - Complainant Restricted from Performing Inspections Complainant was handling the inspection of a traveler at the Detroit Canada Tunnel on May 6, 2018. The record shows that Complainant was performing an inspection of an individual with an Australian passport who was born in Iraq and was applying for admission under the Visa Waiver Program. Complainant had a discussion with multiple supervisors, including SCBPO1 and SCBPO3 about whether the subject was admissible. SCBPO1 and SCBPO2 headed the Admissibility Unit and had an open debate in front of Complainant about whether the subject was admissible. In the context of these heated discussions, Complainant alleged that SCBPO3 stated to Complainant: “The problem is, [Complainant], if you admit this guy as a WT (tourist), you have not gotten any guidance stating this. You have to go on the Congressional law that was enacted, ok? If you admit this guy and you put “[SCBPO3’s] concurs WT” and the one billionth of one percent chance that this guy goes and blows something up and you are going to be held accountable. They’re going to say dual citizens of Iraq are ineligible for waiver, [Complainant]. Did he renounce his citizenship at a foreign Embassy?” Chief1 was not present at the time SCBPO3 made these comments. SCBPO1 and Chief1 later advised Complainant that he could admit the individual under the Visa Waiver Program. Chief1 told Complainant he could put Chief1’s name on all reports as authorizing the admission. 2021000891 4 Complainant returned and stated he did not want to admit the subject because he did not want to get into trouble and was again advised by Chief1 to admit the subject. Complainant advised Chief1 and SCBPO1 that he refused to admit the subject, SCBPO1 completed the inspection. Complainant does not dispute that he was instructed to complete the inspection. After this incident Chief1 sent an email to 33 managers at the Port of Entry notifying them that Complainant was not permitted to conduct primary and secondary inspections, that he had refused a direct order, and that the issue had been forwarded to management for consideration. Chief1 explained that he sent the email to all managers because Complainant could work in any station in the Port of Detroit if he was a Flex officer or had an overtime assignment, and he needed to be restricted from conducting such inspections until management could complete a review and confirm that Complainant would follow Agency policy. Chief1 affirmed that this was standard practice to restrict an officer until the case can be reviewed. The Port Director (PD) confirmed that refusal to follow an order raises a concern that an officer is not upholding the mission of the Agency that would warrant such an email. He further explained that if an employee has a restriction, all managers who may be assigned to work with the employee must be briefed. Chief2 also corroborated Chief1 and PD’s testimony. After consultation with an Assistant Port Director (APD2), Complainant resumed full duty status, and Chief1 sent an email one week later confirming Complainant’s return to full duty and noting that Complainant had received additional direction on the Visa Waiver Program. Complainant contends this is discriminatory, because although Chief1 testified Complainant was a Flex officer who could rotate between assignments, he had not been such an officer for three years, and thus, there was no need for other managers to know. Chief1 did indicate he believed Complainant belonged to the Flex team at the time of the incident, but stated that even if he had not, he would still have had the ability and opportunity to work at the other stations on overtime. Claim 5 - Email to Chief2 Ten days after Complainant’s refusal to complete an inspection as directed, Chief1 sent an additional email to Chief2 which states as follows: I will talk to you about this. Apparently one of my supervisors made comments to [Complainant] that made him feel the decision to deny the subject was correct. I do not think we would have a case or a strong case with what [Complainant] is quoting. Out of context but none the less [sic] statements that should not have been made to him. Complainant alleges that this email and the request to talk to Chief2 shows some type of agenda that Chief1 is trying to get him into trouble. However, Chief1 explained that he was unaware that another supervisor had given Complainant conflicting advice at the time of the inspection, and that when he learned about it, he wanted to discuss the issue, because it might have been a mitigating factor for Complainant’s conduct. 2021000891 5 However, after discussing the conflicting statements, APD2 opined that because Chief1 was the highest-ranking officer, his order was lawful and should be followed regardless of what instructions Complainant received from a lower ranked supervisor. Claim 6 - Parking Complainant asserted Chief1 denied him the ability to park in a secured parking area and instructed SCBPO4 to write him up if he was in the area. The record shows that officers are permitted to park in the secured overflow lot (OL) only if they do not have cards for the Miller Parking Garage (MPG). Complainant has a pass for the MPG. In July 2018, the OL was full and SCBPO4 and two other supervisors pulled up the camera to determine if anyone was parking there who had a pass for the MPG. Complainant’s vehicle was in the OL. Another supervisor told SCBPO4 that Complainant was parked in the OL and that he had already spoken to Complainant about it once. Complainant admitted he parked in the OL and stated he parked there because he had a valuable fantasy football trophy in his car. SCBPO4 let him remain there but told him since other supervisors had talked to him about parking in the OL when he had a pass to the MPG before, she should not have to talk to him about it again. SCBPO4 did not recall Chief1 being on duty or telling Complainant that Chief1 instructed her to write him up and Chief1 denied that he did so. The record is devoid of evidence that Complainant was disciplined as a result of the incident. Claim 7- SCBPO2 refers to Complainant as “Jihad” SCBPO2 acknowledged that he inappropriately referred to Complainant as Jihad in what he described as a “joke” and based on the word rhyming with Complainant’s name. Complainant alleged that this happened in front of multiple officers, including Chief1. However, all 17 of the officers interviewed in the Agency investigation, both supervisory and non-supervisory, said they had never been present when SCBPO2 made these remarks. Complainant specifically alleged Chief1 was present, but Chief1 denied witnessing such comments. The undisputed record establishes that after Complainant raised the issue, management immediately responded by issuing SCBPO2 a Cease and Desist Letter and investigated the allegations. SCBPO2 admitted making the statement. As a result, SCBPO2 was suspended for 12 days. Claim 8 - Proposed Suspension A management inquiry was conducted into the incident, where a Chief (Chief4) obtained memoranda and emails from various individuals involved in the May 6, 2018 inspection and interviewed Complainant. After interviewing Complainant and gathering various documents and memoranda from others, Chief4 determined that Complainant refused to follow an order. The management inquiry and supporting documentation was provided to APD1, who proposed a three-day suspension for Complainant for Failure to Follow Supervisory Instruction. 2021000891 6 On February 22, 2019, PD issued Complainant a notice informing him he had decided to dismiss the proposed three-day suspension issued on September 14, 2018, for failure to follow supervisory instructions. He acknowledged Complainant’s written and oral replies on December 17 and 19, 2018, respectively, and stated he considered the reasons for the proposed action. He stated that while Complainant failed to follow supervisory instructions, the instructions were confusing, and poor communication contributed to his reluctance to complete the inspection. 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, at Chapter 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”). Hostile Work Environment Harassment of an employee that would not occur but for the employee's race, color, sex, national origin, age, disability, or religion is unlawful, if it is sufficiently severe or pervasive. To establish a claim of harassment a complainant must show that: (1) he or she belongs to a statutorily protected class; (2) he or 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 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 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). Whether the harassment is sufficiently severe to trigger a violation of Title VII must be determined by looking at the circumstances, including the frequency of the discriminatory conduct, its severity, whether it is physically threatening or humiliating, or a mere offensive utterance, and whether it unreasonably interferes with an employee's work performance. Harris 510 U.S. at 17, 23; Enforcement Guidance on Harris, at pp. 3, 6. The harassers' conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Id. A single incident or group of isolated incidents will generally not be regarded as discriminatory harassment unless the conduct is severe. Walker v. Ford Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982) 2021000891 7 We agree with the Agency that Complainant failed to demonstrate that the alleged conduct was sufficiently severe or pervasive to establish a hostile work environment. Much of the incidents alleged are not supported by the preponderance of the record. To the extent that the record shows that an alleged employment action occurred, the responsible management officials have provided legitimate, non-discriminatory explanations as discussed above and the record does not support a finding of pretext. Moreover, except for the facts relevant to Claim 7, Complainant did not demonstrate that he was subjected to unwelcome conduct based on his national origin. With respect to Claim 7, the record indicates that on or around September 14, 2018, Complainant was subjected to several offensive and inappropriate instances of being referred to as “jihad” instead of his name. However, we find that Complainant did not establish that these isolated incidents were sufficiently continuous, and not merely episodic, to be considered pervasive as to create a hostile work environment. See Muhammad v. Dep’t of Treasury, EEOC Appeal No. 01A50741 (Mar. 15, 2016). Additionally, even if the conduct was shown to be sufficiently severe or pervasive, we agree that the Agency exercised reasonable care to prevent the harassment and promptly corrected the harassment upon learning of it. SCBPO2 was suspended 12 days and apologized for the remark. There is no evidence that any similar conduct recurred. As a result, the Commission finds that there is no basis for imputing liability to the Agency. Moreover, to the extent Complainant claims that he was subjected to disparate treatment regarding the instant matters, the Commission finds that Complainant has not proffered any evidence that the Agency's explanation for its actions was pretext for discrimination. As a result, the Commission finds that Complainant was not subjected to discrimination or a hostile work environment as alleged. CONCLUSION Accordingly, 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. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if 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. 2021000891 8 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, a 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. 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. 2021000891 9 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 9, 2022 Date