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

Equal Employment Opportunity Commission

May 7, 2015

01-2013-2691-0500 (E.E.O.C. May. 7, 2015)

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

,
Complainant,

v.

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

Appeal No. 0120132691

Hearing No. 551-2012-00013X

Agency No. HS-CBP-00857-2011

DECISION
Complainant filed an appeal from the Agency’s final order dated June 10, 2013, concerning
her 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, we
AFFIRM the Agency’s final order dismissing a portion of the complaint and finding no
discrimination regarding the remainder of the complaint.

BACKGROUND
In her complaint, dated April 25, 2011, Complainant, a former Agency employee, alleged
discrimination based on sex (female) when:

(1) From October 2009, through January 2010, she was subjected to a hostile work
environment when her supervisor and the Swing Shift Cargo Coordinator criticized her
and commented on her personal appearance and lifestyle choices, denied her access to
the women’s restroom for over nine weeks, and ostracized her, and when management
did not afford her training opportunities aboard shipping vessels or with trucks in the
Vehicle and Cargo Inspection System (VCIS).

(2) On February 18, 2011, management terminated her employment during her
probationary period because of information secured during an investigation regarding
her computer usage.

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Upon completion of the investigation of the complaint, Complainant requested a hearing before
an Equal Employment Opportunity Commission Administrative Judge (AJ). On May 1, 2013,
the AJ issued a decision without holding a hearing, dismissing claim (1) due to untimely EEO
Counselor contact and finding no discrimination concerning the entire complaint. The
Agency’s final order implemented the AJ’s decision.

ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of discrimination be
brought to the attention of the EEO Counselor within 45 days of the alleged discriminatory
event, or the effective date of an alleged discriminatory personnel action. We find that the
alleged incidents in claim (1) occurred at the latest in January 2010, while Complainant was in
training at the Blaine POE. However, Complainant did not contact an EEO Counselor contact
regarding the alleged incidents until March 18, 2011, which was beyond the 45-day time limit
set by the regulations. Complainant fails to present adequate justification to warrant an
extension of the applicable time limit for contacting an EEO Counselor. Thus, we find that
claim (1) is untimely and was properly dismissed pursuant to 29 C.F.R. § 1614.107(a)(2).
Therefore, we shall not consider the merits of claim (1).

The Commission’s regulations allow an AJ to issue a decision without a hearing when he or
she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). This
regulation is patterned after the summary judgment procedure set forth in Rule 56 of the
Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment
is appropriate where a court determines that, given the substantive legal and evidentiary
standards that apply to the case, there exists no genuine issue of material fact. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment,
a court’s function is not to weigh the evidence but rather to determine whether there are
genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at
the summary judgment stage and all justifiable inferences must be drawn in the non-moving
party’s favor. Id. at 255. 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 this case, we
find that the AJ properly issued a decision without a hearing because no genuine dispute of
material fact exists.
With regard to claim (2), the Agency stated that it decided to terminate Complainant from her
employment because her internet use far exceeded what was necessary for her position and as a
probationary employee her conduct did not represent the type of character the Agency sought.
Upon review, we agree with the AJ that Complainant failed to rebut the Agency’s articulated
legitimate, nondiscriminatory reasons for her termination. Although Complainant claims that
she did not use the internet for personal use any more or less than her coworkers, we note that
none of her coworkers were similarly situated because none were probationary employees. We
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find that Complainant failed to show that the Agency’s actions were motivated by
discrimination as she alleged.

CONCLUSION
Accordingly, the Agency’s final order is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION

(M0610)
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 9-18 (November 9, 1999). All requests and arguments must be
submitted to the Director, Office of Federal Operations, Equal Employment Opportunity
Commission, P.O. Box 77960, Washington, DC 20013. 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
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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

(Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an
attorney, you may request from the Court that the Court appoint an attorney to represent you
and that the Court also permit you to file the action without payment of fees, costs, or other
security. See

Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et
seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791, 794(c). The grant or
denial of the request is within the sole discretion of the Court. Filing a request for an attorney
with the Court does not extend your time in which to file a civil action. Both the request and
the civil action must be filed within the time limits as stated in the paragraph above (“Right to
File a Civil Action”).
FOR THE COMMISSION:

______________________________
Carlton M. Hadden, Director
Office of Federal Operations

Date
May 7, 2015