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

Equal Employment Opportunity Commission

Feb 6, 2023

Appeal No. 2021004259 (E.E.O.C. Feb. 6, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Hilda A.,1 Complainant, v. Alejandro N. Mayorkas, Secretary, Department of Homeland Security (Customs and Border Protection), Agency. Appeal No. 2021004259 Agency No. HS-CBP-00729-2020 DECISION On July 15, 2021, 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 June 11, 2021, final decision 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 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, the Commission VACATES the Agency’s final decision and REMANDS the matter for a supplemental investigation. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Customs and Border Protection (CBP) Officer, GS-1895-12, at the Agency’s El Paso Port of Entry (POE), El Paso Field Office, Office of Field Operations in El Paso, Texas. 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. 2021004259 2 On April 13, 2020, Complainant filed an EEO complaint alleging that the Agency subjected her to a hostile work environment and discriminated against her on the bases of sex (female), disability (physical: cervical myelopathy, cervical fusion with limited neck movement) and age (56) when: 1. from September 8, 2019, to January of 2020, the Supervisory CBP Officer (Supervisor 1) assigned Complainant regular cashier duties in addition to issuing I-94s, despite the fact Complainant was on Light Duty; 2. in September of 2019, Supervisor 1 told the Program Manager that she did not want to work with Complainant in Passport Control Secondary because Complainant was on Light Duty and did not have a weapon. 3. on September 13, 2019, Supervisor 1 told Complainant that she did not want to work with her, and that Complainant was a liability due to her health issues; 4. from October 2019 to February 2020, on approximately 10 to 15 occasions, the Supervisor interrupted Complainant talking with other employees and asked them to stop talking; 5. on December 24, 2019, Supervisor 1 assigned Complainant passport control duties, despite the fact Complainant was on Light Duty. When Complainant explained she could help but could not perform regular duties for a full eight hours, the Supervisor replied "it is what it is;" 6. on December 24, 2019, in front of the public, Supervisor 1 yelled at Complainant to start issuing permits, stating Complainant does not want to do her job. Then, Supervisor 1 turned to the members of the public and advised them they could file a complaint against Complainant for not attending to them. 7. on January 1 and January 3, 2020, Supervisor 1 yelled at Complainant, accused her of doing a pat down and processing a case without a weapon while Complainant was on Light Duty, and accused her of abusing her light duty schedule; 8. on January 2, 2020, Supervisor 1 accused Complainant of making false statements in a memorandum; 9. on January 3, 2020, Supervisor 1 commented that Complainant did not want to work; 10. on January 3, 2020, after Supervisor 1 called the Chief regarding Complainant's schedule, Complainant's Light Duty shift was changed from the 10:00 p.m. -6:00 2021004259 3 a.m. shift to the midnight-8 a.m. shift for two days before Complainant returned to full duty on her regular shift; 11. on January 6, 2020, Supervisor 1 yelled at Complainant over the phone, accusing her of working the wrong schedule and of not wanting to perform her duties; 12. on January 15 and 16, 2020, Supervisor 1 raised her tone, claimed Complainant did not want to do her job, threatened to give Complainant a verbal warning and reprimand for not taking over another officer's duties, and threatened to write Complainant up for insubordination and disobeying a direct order; 13. on January 16, 2020, when Complainant asked another Supervisory CBP Officer (Supervisor 2) to initial an assignment for her, he said "I'm not signing shit for you." Later, after Complainant refused to perform cashier duties, Supervisor 2 said he did not need a nonproductive worthless person there, and told her to go to the back of the office; 14. on January 31, 2020, Supervisor 1 approached Complainant in a threatening voice and demanded she perform cashier duties when three other officers were available. After Supervisor 1 called Supervisor 2, Supervisor 2 reassigned Complainant to detention log officer duties, raised his voice and demanded Complainant leave the work area and work from a different location. When Complainant did not, Supervisor 2 told Complainant to go home on administrative leave. Complainant did not go home; and 15. on February 6, 2020, Complainant received a Weingarten notice, was informed she was accused by Supervisor 1 and Supervisor 2 of not wanting to work, disobedience, neglecting duties and disobeying an order, and was asked to provide a written statement to the Chief. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). In accordance with Complainant’s request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The Agency concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. The Agency found that Complainant failed to show that she was subjected to disparate treatment. 2021004259 4 CONTENTIONS ON APPEAL On appeal, Complainant asserts that the Agency does not have a Standard Operating Procedure when it comes to light duty matters. Complainant asserts that the Agency knowingly discriminated against her based on her medical condition despite her submission of medical documentation demonstrating that she required a reasonable accommodation. Instead of assistance, Complainant notes that she was informed that she was a liability due to her condition. Complainant also states that despite management’s assertion that she was placed in Passport Control Secondary as a form of light duty, it was insufficient to meet her needs. Complainant asserts that she was ultimately forced to return to work in full duty status in fear that the Agency would attempt to terminate her. However, she asserts that the harassment continued, and that the Agency simply ignored her situation. In response, the Agency requests that the Commission affirm its final decision. 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), at 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”). Upon review, we find that Complainant’s allegations concern her claims that she was treated differently based on her disability and age, as well as not being provided with the appropriate reasonable accommodation. The Agency, however, failed to identify or address Complainant’s claim of denial of reasonable accommodation. Furthermore, Complainant has alleged that because she engaged in protected activity in the form of requesting a reasonable accommodation, she has been subjected to retaliatory harassment. Since the Agency failed to properly identify Complainant’s claims, Complainant’s allegations were not sufficiently investigated to permit the Commission to render a decision on the merits of her complaint. EEOC Regulation 29 C.F.R. § 1614.108(b) requires that the Agency develop an impartial and appropriate factual record. Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (MD 110), Ch. 6, § I (Aug. 5, 2015). An appropriate factual record is one that allows a reasonable factfinder to draw conclusions as to whether discrimination occurred. Id. An investigator must be thorough. “This means identifying and obtaining all relevant evidence from all sources regardless of how it may affect the outcome.” MD 110, Ch. 6, § V.D. “To ensure a balanced record, it is necessary only to exhaust those sources likely to support the complainant and the respondent. 2021004259 5 An investigation conducted in this manner might reveal that there is ample evidence to support the complainant's claims and no evidence to support the agency's version of the facts, or vice versa. The best type of investigations allows for complainants to provide rebuttal evidence with sufficient time for the investigator to address any issues raised within the regulatory time frames.” Id. Here, the Agency failed to identify Complainant’s claim of denial of reasonable accommodation. The record thus lacks the process by which Complainant was placed on “light duty”. This includes how she was assigned light duty (claim 1); and what and how the duties were assigned to her (claim 5-7, 12-14). An adequate investigation would have included affidavits from relevant individuals involved in the light duty interactive process. For example, there are no statements from the Supervisory Mission Support Specialist, who provided Complainant with a renewal of her temporary light duty status and also allegedly responsible for changing Complainant’s shift hours. There are also no statements from the two Administrative Supervisors who allegedly corrected Complainant’s light duty hours schedule. Additionally, Complainant asserted that she felt targeted by a specific individual for requesting light duty, this individual was identified by Complainant but not interviewed. Additionally, once on light duty, Complainant repeatedly asserted that she was provided with inappropriate assignments. We note that there are no affidavits from any relevant individuals responsible for determining Complainant’s light duty assignments. Instead, management repeatedly referred to the Collective Bargaining Agreement (CBA) when discussing Complainant’s light duty assignments. Yet, the Agency failed to provide a copy of the relevant portion of the CBA. Furthermore, since the Agency failed to identify Complainant’s claim of denial of reasonable accommodation, the Agency similarly failed to identify Complainant’s claim of retaliatory harassment for requesting reasonable accommodation.2 For example, Complainant asserted that because of her request for a reasonable accommodation, she was called an undesirable employee (claim 2); she was told that she was a liability due to her health issues (claim 3); she was accused of abusing her light duty schedule (claim 7); and had her light duty hours changed (claims 10 and 11). We note that Complainant listed four witnesses that could attest to the retaliatory harassment, but none were interviewed. Report of Investigation (ROI) at 142-143. 2 We note that a request for reasonable accommodation of a disability constitutes protected activity under the Rehabilitation Act, and therefore retaliation for such requests is unlawful. See EEOC Enforcement Guidance on Retaliation and Related Issues, EEOC Notice Number 915.004, at Example 9 (Aug. 25, 2016) citing Solomon v. Vilsack, 763 F.3d 1, 15 n.6 (D.C. Cir. 2014) (citing rulings from every federal judicial circuit holding that requests for reasonable accommodation are protected activity). 2021004259 6 Based on the foregoing, we find the investigative record is inadequate and needs to be supplemented so that a determination on the merits of Complainant's complaint can be made. See generally, Stewart v. Dep't of Homeland Sec., EEOC Request No. 0520070124 (Nov. 14, 2011) (inadequate investigation); O'Neill v. Dep't of State, EEOC Appeal No. 0120083597 (Jan. 15, 2009) (inadequate investigation). CONCLUSION Accordingly, we VACATE the Agency’s decision and REMAND the matter for supplemental investigation and further processing in accordance with the ORDER set forth below. ORDER I. Within ninety (90) days of receipt of this order, the Agency shall conduct a supplemental investigation, to include the following: A. Affidavits from all relevant individuals, including but not limited to those listed below. If the following identified individuals fail to provide affidavits, then an explanation why. 1. Two Supervisory Mission Support Specialists referenced by Supervisor 1 but not interviewed. Both should be interviewed about their role in the light duty process. The names of these individuals can be located in the ROI at 285 under the response to question 45. See also ROI at 125. 2. Complainant asserted that she was targeted by a specific individual for requesting light duty, this individual was identified by Complainant but not interviewed and can be found in the ROI at 26. 3. Interviews with Complainant’s four listed witnesses found in the ROI at 143. B. The investigation shall address the interactive process including, how light duty status is determined; who was involved in the process; documents regarding how the individualized assessment was conducted; how light duty hours are determined; and how assignments are determined and assigned. C. A copy of the CBA as referenced by management. D. The Agency’s arguments and evidence that reasonable accommodation would impose an undue hardship. 2021004259 7 II. Upon completion of the investigation, the Agency must provide the Complainant with a copy of the supplemental record and findings and shall notify Complainant of the opportunity to provide any rebuttal arguments or evidence within fifteen (15) calendar days. Following the rebuttal opportunity, the Agency shall, within thirty (30) calendar days, issue a final decision including appeal rights. As provided in the statement entitled "Implementation of the Commission's Decision,” the Agency must send to the Compliance Officer: 1) a copy of the Agency’s letter of acknowledgment to Complainant, 2) a copy of the Agency’s notice that transmits the investigative file, and 3) a copy of the complainant’s rebuttal or a statement from the Agency that it did not receive a response from Complainant by the end of the rebuttal period. In accordance with Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § IX.E (Aug. 5, 2015), the Agency shall give priority to this remanded case in order to comply with the time frames contained in this Order. The Office of Federal Operations will issue sanctions against agencies when it determines that agencies are not making reasonable efforts to comply with a Commission order to investigate a complaint. IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719) Under 29 C.F.R. § 1614.405(c) and §1614.502, compliance with the Commission’s corrective action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report in the digital format required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Complainant and his/her representative. If the Agency does not comply with the Commission’s order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission’s order prior to or following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled “Right to File a Civil Action.” 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409. Failure by an agency to either file a compliance report or implement any of the orders set forth in this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency 2021004259 8 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. 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). 2021004259 9 COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (R0610) This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency or filed your appeal with the Commission. 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. 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 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 6, 2023 Date