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

Equal Employment Opportunity Commission

Jul 24, 2015

01-2013-0897-0500 (E.E.O.C. Jul. 24, 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. 0120130897

Hearing No. 451-2012-00194X

Agency No. HS-CBP-21504-2012

DECISION
Pursuant to 29 C.F.R. § 1614.405, the Commission accepts Complainant’s appeal from the
Agency’s November 13, 2012 final order 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. and Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. The
Commission’s review is de novo. For the following reasons, the Commission AFFIRMS the
Agency’s final order.

BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Customs and
Border Protection (CBP) Officer at the El Paso Port of Entry in El Paso, Texas. On October
4, 2011, Complainant requested 16 hours of administrative leave (official time) to complete an
EEO affidavit in connection with a complaint that had previously been dismissed by the
Agency and subsequently remanded by the Commission. On October 5, 2011, Complainant
emailed his second-level supervisor (S2) reiterating the request. Complainant then submitted
an SF-71 request for 16 hours of administrative leave, or eight hours each day on October 13 –
14, 2011. On October 12, 2011, Complainant was advised that he would be permitted to take
four hours of administrative leave on October 13, 2011 and four hours on October 14, 2011.
In response to this offer, Complainant requested, and was allowed, to take all of these 8
approved hours of administrative leave on October 14, 2011.

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On October 20, 2011, S2 issued Complainant a memorandum of counseling regarding his use
of leave and his job performance. The memorandum noted that Complainant had accumulated
56.5 hours of sick leave and/or annual leave in lieu of sick leave in conjunction with non-
scheduled days, numerous days of tardiness, and a significant number of unscheduled
absences. In addition, S2 cited several performance deficiencies including Complainant’s need
to improve time management and workload balance. S2 noted that the memorandum was not a
disciplinary action.

During Fiscal Year 2011, Complainant was assigned to the Foreign Trade Zone (FTZ) duty
location. At the end of the fiscal year, Complainant and other CBP Officers were required to
participate in the Bids and Reassignments Process to continue in their current special
assignment, or to be reassigned to other special assignments that they desired. On September
1, 2011, the announcements for Fiscal Year 2012 were distributed. Complainant submitted his
application, bidding on four different special assignments. Complainant bid to remain in the
FTZ assignment as his first choice and on three other special assignments as his second, third,
and fourth preferences. Complainant was not selected for any of the four assignments for
which he applied, and was subsequently reassigned to the Bridge of the Americas duty
location.

On January 5, 2012, Complainant filed an EEO complaint alleging that the Agency
discriminated against him and subjected him to a hostile work environment on the bases of sex
(male), disability, and in reprisal for prior protected EEO activity when:

1. On October 17, 2011, Complainant was directed to delete his request for official
time from the Customs Overtime Scheduling System;

2. On or around October 19, 2011, Complainant was counseled for his performance
and attendance practices;

3. On October 19, 2011, Complainant was reassigned from the Foreign Trade Zone
(FTZ) to the Bridge of the Americas duty location, as a result of a bid, rotation and
placement procedure.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation (ROI) and notice of his right to request a hearing before an Equal
Employment Opportunity Commission Administrative Judge (AJ). Complainant timely
requested a hearing, but the AJ assigned to the case granted summary judgment in favor of the
Agency and issued a decision on October 15, 2012.

In her decision, as an initial matter, the AJ addressed Complainant’s claim that he never
received the AJ’s June 19, 2012 Acknowledgment and Order and that he needed an extension
of the discovery deadlines. The AJ noted that while Complainant advised that he had
“problems opening the file,” the Order was mailed to Complainant, not sent electronically. In
addition, the AJ noted that Complainant had filed five prior requests for a hearing before an
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EEOC Administrative Judge, and therefore, had previously been issued five Acknowledgment
and Orders. As a result, the AJ found that Complainant was disingenuous in claiming that he
had never received the Acknowledgment and Order, and that he made such a claim because he
was aware that the deadline for initiating discovery had passed. Even if that were not the case,
the AJ determined Complainant knew or should have known no later than July 6, 2012 (when
he was contacted by the Agency’s representative regarding his schedule) and certainly no later
than July 9, 2012 (when he was emailed the Agency’s designation of representative) that the
administrative hearing process had begun. As a result, the AJ denied Complainant’s extension
request.

Turning to the merits of the complaint, the AJ assumed arguendo that Complainant had
established a prima facie case of discrimination and reprisal and found that the Agency had
articulated legitimate, nondiscriminatory reasons for its actions. Specifically, as to claim (1),
management believed that eight hours of administrative leave was reasonable for Complainant
to prepare his EEO affidavit. The AJ found that Complainant failed to offer any evidence that
being limited to eight hours prevented him from completing the affidavit in a thorough and
timely manner. With respect to claim (2), between August 14, 2011 and October 19, 2011,
Complainant took 56.5 hours of sick leave and/or annual leave in lieu of sick leave and had
numerous instances of tardiness. S2 issued Complainant a written counseling advising him that
he had incurred a significant number of unscheduled absences and cautioning him that a failure
to correct the identified deficiencies would result in corrective action.

Finally, regarding claim (3), Complainant submitted an application bidding on four different
special assignments during the Bids and Reassignments Process. According to Complainant,
due to a “technicality,” in late September, he and other CBP officers were allowed to resubmit
their applications. Complainant was not selected for any of the four assignments for which he
applied. Agency management stated that employees with earlier enter-on-duty dates were
selected for Complainant’s first (the FTZ special assignment), second, and third special
assignment bids, and his application failed to address the requisite knowledge, skills and
abilities for his fourth bid.

In attempting to establish that the Agency’s reasons for its actions were pretextual,
Complainant argued, as to claim (2), that “90% of the time” his leave requests were approved.
The AJ noted that approval of leave requests does not preclude an employer from counseling
an employee where, as here, a pattern of leave abuse is detected.

Regarding claim (3), Complainant claimed that in FY 2011, there were four encumbered FTZ
positions, and that the Agency had a 25% “displacement policy” wherein, annually, 25% of
the FTZ CBP Officers were replaced. According to Complainant, for FY 2012, instead of
displacing 25%, or one, of the four FTZ CBP Officers, the Agency reassigned 75%, or three
of the FTZ employees, including Complainant. The AJ determined that, although there may
have been four encumbered FTZ positions at the beginning of FY 2011, during FY 2011, one
employee retired and another was reassigned due to pregnancy. That left only Complainant
and another employee occupying two of the four FTZ special assignment positions. Inasmuch
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as it would have been impossible for the Agency to reassign the one-half a person that 25% of
two employees represented, it was appropriate for the Agency to reassign one of the two
employees who encumbered the FTZ positions at the end of FY 2011. Upon reassigning one
employee, in order to be fully staffed, the Agency was required to fill three FTZ positions,
which it did.

The AJ concluded that Complainant failed to show that the Agency’s reasons for its actions
were pretext for unlawful discrimination or reprisal. In addition, the AJ determined that the
alleged incidents were insufficiently severe or pervasive to establish a hostile work
environment. As a result, the AJ found that Complainant had not been subjected to
discrimination, reprisal, or a hostile work environment as alleged. The Agency subsequently
issued a final order fully implementing the AJ’s decision. The instant appeal followed.

CONTENTIONS ON APPEAL
On appeal, Complainant again claims that he did not receive the AJ’s June 19, 2012
Acknowledgment and Order, and as a result, the EEO process was derailed. Further,
Complainant contends that the record shows that he was subjected to discrimination and
reprisal. Complainant argues that it would take a review of the whole investigation file to
understand the discrimination and hostile work environment that he suffered. Accordingly,
Complainant requests that the Commission reverse the final order.

ANALYSIS AND FINDINGS
The Commission's regulations allow an AJ to grant summary judgment when he or she finds
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.
Upon review, the Commission finds that there is no genuine issue of material fact. The record
has been adequately developed, Complainant was given ample notice of the Agency's motion
for summary judgment, he was given a comprehensive statement of the allegedly undisputed
material facts, he was given the opportunity to respond to such a statement, and he was given
the opportunity to engage in discovery. The Commission further finds that the AJ did not
abuse her discretion in denying Complainant’s request for an extension for discovery requests.
The Commission finds that, even assuming all facts in favor of Complainant, a reasonable fact-
finder could not find in his favor, as explained below. Therefore, the Commission finds that
the AJ’s grant of summary judgment in favor of the Agency was appropriate.

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5
Denial of Official Time (Claim One)

To the extent that Complainant alleges that he was denied official time in claim (1), the
Commission notes that EEOC Regulation 29 C.F.R. § 1614.605(b) provides that Agency
employees shall be given a reasonable amount of official time, if otherwise on duty, to prepare
a complaint and to respond to Agency and EEO requests for information. The Commission
has stated that an allegation pertaining to the denial of official time states a separately
processable claim alleging a violation of the Commission's regulations, without requiring a
determination of whether the action was motivated by discrimination. See Edwards v. U.S.
Postal Serv., EEOC Request No. 05960179 (Dec. 23, 1996). The Commission has the
authority to remedy a violation of 29 C.F.R. § 1614.605 without a finding of discrimination.
Id. To prevail on this claim, Complainant must show why the amount of time asked for was
necessary. See Complainant v. U.S. Postal Serv.

, EEOC Appeal No. 0120123527 (Jan. 31,
2013).
Complainant initially requested 16 hours of official time to complete an EEO affidavit
regarding a remanded complaint. ROI, at 160-61. Complainant’s supervisor affirmed that on
October 12, 2011, Complainant was informed that he would be approved for four hours on
October 13, 2011 and October 14, 2011 for a total of eight hours. Id. at 329. S2 had
consulted with the Labor and Employee Relations Office regarding the request and determined
that eight hours would be sufficient for Complainant to complete the affidavit. Id. at 332.
Complainant subsequently requested to combine the four hours approved for each day and
utilize them on October 14, 2011. Id. at 329. The request was approved by S2, and
Complainant utilized all eight hours on October 14, 2011. Id

.
In this case, the Agency provided sufficient evidence to establish that it granted Complainant a
reasonable amount of official time to address EEO matters. Thus, the Commission finds that
Complainant was not denied official time. Additionally, the Commission agrees with the AJ
that Complainant failed to produce any evidence that the amount of official time granted was
insufficient.

Disparate Treatment

To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part
evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating
that he was subjected to an adverse employment action under circumstances that would support
an inference of discrimination. Furnco Constr. Corp. v. Waters, 438 U.S. 567, 576 (1978).
Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell
Douglas, 411 U.S. at 802 n. 13. The burden then shifts to the Agency to articulate a
legitimate, nondiscriminatory reason for its actions. Tx. Dep't of Cmty. Affairs v. Burdine,
450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a
preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v.
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Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks

,
509 U.S. 502, 519 (1993).
In the instant case, the Commission agrees with the AJ that assuming arguendo that he
established a prima facie case of discrimination and reprisal, Complainant failed to present
evidence to rebut the Agency's legitimate, nondiscriminatory reasons for its actions. In
particular, regarding claim (2), S2 affirmed that he issued the memorandum of counseling
based on Complainant’s unacceptable attendance practices and work performance deficiencies.
ROI, at 342, 451. S2 noted that Complainant had incurred a significant amount of sick leave
or annual leave in lieu of sick leave in conjunction with non-scheduled days and unscheduled
absences. Id. at 342. While the memorandum was not disciplinary in nature, S2 warned
Complainant that a failure to correct the identified deficiencies would result in corrective
action. Id

.
Finally, with respect to claim (3), during the Bids and Reassignments Process, employees with
earlier enter-on-duty dates were selected for Complainant’s first, second, and third special
assignment bids, and his application failed to address the requisite knowledge, skills and
abilities for his fourth bid. ROI, at 309. As a result, Complainant was reassigned to the
Bridge of Americas duty location.

Construing the evidence in the light most favorable to Complainant, the Commission finds no
evidence that Complainant's protected classes were a factor in any of the Agency's actions. At
all times, the ultimate burden remains with Complainant to demonstrate by a preponderance of
the evidence that the Agency's reasons were not the real reasons and that the Agency acted on
the basis of discriminatory or retaliatory animus. Complainant failed to carry this burden. As
a result, the Commission finds that Complainant has not established that he was subjected to
discrimination or reprisal as alleged.

Hostile Work Environment Harassment

Finally, to the extent that Complainant contends that he was subjected to a hostile work
environment with respect to the matters herein, the Commission find that under the standards
set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993), Complainant's claim of
harassment must fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC
Notice No. 915.002 (Mar. 8, 1994). A finding of a hostile work environment is precluded by
the Commission’s determination that Complainant has not established that any of the actions
taken by the Agency were motivated by discriminatory or retaliatory animus. See Oakley v.
U.S. Postal Service, EEOC Appeal No. 01982923 (Sep. 21, 2000). As a result, the
Commission finds that Complainant has not established that he was subjected to discrimination,
reprisal, or a hostile work environment as alleged.
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CONCLUSION
After a review of the record in its entirety, including consideration of all statements submitted
on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM
the Agency’s final order, because the Administrative Judge’s issuance of summary judgment
without a hearing was appropriate and a preponderance of the record evidence does not
establish that discrimination occurred.

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
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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

(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
July 24, 2015