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

Equal Employment Opportunity Commission

Mar 27, 2023

Appeal No. 2022000753 (E.E.O.C. Mar. 27, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Rolf K.,1 Complainant, v. Alejandro N. Mayorkas, Secretary, Department of Homeland Security (Customs and Border Protection), Agency. Appeal No. 2022000753 Hearing No. 470202000215X Agency No. HSCBP003592020 DECISION Complainant filed an appeal with the Equal Employment Opportunity Commission (“EEOC” or “Commission”), pursuant to 29 C.F.R. § 1614.403, from the Agency’s November 5, 2021 Final Order concerning an 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. BACKGROUND At the time of events giving rise to this complaint, Complainant was employed by the Agency as a Border Patrol Agent, GS-1896-12, at the Agency’s Sandusky Bay Station in Port Clinton, Ohio. On December 18, 2019, Complainant filed a Formal EEO Complaint alleging that the Agency subjected him to discrimination, including harassment/a hostile work environment, on the bases 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. 2022000753 2 of race (African American), disability (anxiety and depression) and reprisal for prior protected EEO activity2 when: 1. On September 17, 2018, a Border Patrol Agent used a radio transmitter to secretly record a conversation with Complainant, while attempting to gather information about Complainant's prior EEO complaint and family, 2. From February 2, 2019 through November 11, 2019, Complainant’s personal locker at the Sandusky Bay Station, was broken into on six (6) occasions, 3. On March 21, 2019, a Border Patrol Agent secretly recorded a conversation with Complainant, while attempting to gather information about Complainant’s prior EEO complaint and family, 4. On September 18, 2019, Complainant overheard a Patrol Agent-in-Charge inform Agents during a muster that Complainant, "will be gone within the next 60-90 days” and believes the Patrol Agent-in-Charge initiated an investigation against Complainant, 5. On December 7, 2019, the Division Chief temporarily revoked Complainant’s right to carry a government issued firearm, badge, and credentials, and, 6. On December 18, 2019, the Acting Deputy Chief Patrol Agent directed Complainant to take a Fitness for Duty Exam (“FFDE”). After its investigation into the complaint, the Agency provided Complainant with a copy of the report of investigation (“ROI”) and notice of his right to request a hearing before an EEOC Administrative Judge (“AJ”). Complainant timely requested a hearing. The AJ assigned to the case determined sua sponte that the complaint did not warrant a hearing and issued a Notice of Proposed Summary Judgment to the parties. Both parties responded. Complainant requested the opportunity to engage in discovery, detailing areas of the ROI he believes are deficient. The Agency’s response in favor of summary judgment was accompanied by documents from two investigative reports (Case Nos. 202002399 and 202002401) from the Agency’s Office of Professional Responsibility (“OPR”) which address all of Complainant’s allegations in the instant complaint. After reviewing the record and the parties’ submissions, the AJ issued a decision without a hearing in favor of the Agency. 2 Complainant states that he filed two EEO complaints and names four colleagues for whom he provided witness testimony in support of EEO-related claims (two EEO complaints of sexual harassment, one disability-related arbitration case, and one age-related complaint with the Office of Professional Responsibility (“OPR”)). Complainant asserts that all of his prior EEO activity and involvement concerned the same two management officials. 2022000753 3 The Agency issued its final order adopting the AJ’s finding that Complainant failed to prove discrimination as alleged. The instant appeal followed. The Commission's regulations allow an AJ to grant summary judgment when they find 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. In rendering this appellate decision, we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a)(stating that a “decision on an appeal from an Agency’s final action shall be based on a de novo review…”); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (“EEO- MD-110”), at Chap. 9, § VI.B. (as revised, August 5, 2015)(providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). 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. Such a dispute would indicate that a hearing is necessary to produce evidence to support a finding that the agency was motivated by discriminatory animus. Here, however, Complainant has failed to establish such a dispute. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in Complainant’s favor. For Claims 1 through 3 (break-ins and surveillance), given the record and OPR investigations, the AJ determined that additional discovery was not necessary because Complainant’s allegations are not substantiated. The AJ aptly noted that Complainant does not explain how his discovery requests, if granted, would turn up evidence of recordings or theft. For Claim 4, the AJ properly found that the Patrol Agent-in-Charge’s comments do not state a viable claim of harassment/hostile work environment. The Commission has repeatedly found that remarks or comments unaccompanied by a concrete agency action usually are not a direct and personal deprivation sufficient to render an individual aggrieved for purposes of Title VII. See Backo v. United States Postal Serv., EEOC Request No. 05960227 (Jun. 10, 1996) (a supervisor's remarks on several occasions, unaccompanied by any concrete action, failed to state a claim). For Claims 5 and 6 the AJ determined that Complainant has not provided persuasive evidence that would indicate the Agency’s legitimate nondiscriminatory reason (employee safety) for temporarily revoking his firearm, badge and credentials and referring him for a FFDE was pretext for discriminatory or retaliatory intent. 2022000753 4 In other words, Complainant did not show that a question of material fact exists over whether the Agency’s proffered explanation contained such “weaknesses, implausibility, inconsistencies, incoherencies, or contradictions in the [Agency's] proffered legitimate reasons for its action that a reasonable fact finder could rationally find them unworthy of credence.” Evelyn S. v. Dep't of Labor, EEOC Appeal No. 0120160132 (Sept. 14, 2017), see also, Widmar v. Sun Chem. Corp., 772 F.3d 457, 465 (7th Cir. 2014). Denied Discovery Request The Commission does not take lightly Complainant’s concern that the Agency has used his mental health diagnosis as an excuse to delegitimize his allegations of discrimination and reprisal and in turn fail to properly investigate them. It is the Commission's policy that the parties are entitled, pursuant to 29 C.F.R. § 1614.109(b), to the reasonable development of evidence on the issues raised in the complaint. “The Administrative Judge may limit the quantity and timing of discovery…[and] there are many situations in which the record does not have to be supplemented.” EEOC Management Directive 110 (“EEOC MD-110”) Ch. Sec. V.A-B. Where an AJ deems it necessary to engage in discovery, our guidance provides that “[t]he request should be: 1) as specific as possible and 2) reasonably calculated to discover non-repetitive, material evidence.” EEO MD-110 Ch. Sec. V.D(1)(b). Emphasis added. Complainant asserts that discovery is necessary to develop the record because the EEO Investigator assigned to his complaint failed to contact all of the 22 potential witnesses Complainant listed and did not obtain all of his requested documents. The AJ’s decision addressed Complainant’s concern, but still found that discovery was not necessary to render a decision without a hearing. In particular, the AJ emphasized the OPR investigative findings into the same allegations. We reviewed Complainant’s witness list and document requests. Complainant has not identified in the record or in his appeal the specific facts he believes these witnesses and documents would provide to support his claims. Rather, he relies on his assertions about the Agency’s motivations to support his requests. For instance, he asserts that the FFDE “is an expedient way to remove me and avoid further exposure of unethical activity.” A complainant seeking to thwart summary judgment must comply with Federal Rule of Civil Procedure 56(e) and Federal Rule of Evidence 602, both of which require that testimony be based on personal knowledge. Personal knowledge can include reasonable inferences, but it does not include speculating as to an employer's state of mind, or other intuitions, hunches, or rumors. Payne, 337 F.3d at 772. Widmar v. Sun Chem. Corp., 772 F.3d 457, 459-60 (7th Cir. 2014). Moreover, the record supports the AJ’s determination that discovery was not necessary to issue a decision by summary judgment. 2022000753 5 The ROI contains, among other things, statements from several of Complainant’s suggested witnesses, including one of the OPR investigators, email correspondence between Management, the EEO Counselor3 that to the Agency’s actions in Claims 5 and 6, as well as the letters issued to Complainant on these matters. The OPR documentation for Case Nos. 202002399 and 202002401 provides detailed summaries of interviews with over 10 witnesses, including Complainant and are consistent with testimony and emails contained in the ROI for the instant complaint. Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’ arguments on appeal, we conclude that the AJ correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated against by the Agency as alleged. Accordingly, we AFFIRM the Agency’s final order adopting the AJ’s 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. 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 3 We reject Complainant’s argument that the EEO Counselor demonstrated bias against Complainant when he notified Management that Complainant’s EEO allegations, when considered with the allegations in Complainant’s prior EEO complaint, may indicate paranoid thinking, which is a potential mental health concern. Not only would it be inappropriate for the Commission to intervene in the Agency’s internal safety protocols, but such an intervention could chill employees’ initiative to take preventative safety measures in the future. 2022000753 6 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. The court has the sole discretion to grant or deny these types of requests. 2022000753 7 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 March 27, 2023 Date