01a53381
09-12-2005
Eugene A. Cavicchi, Complainant, v. Michael Chertoff, Secretary, Department of Homeland Security, (U.S. Customs and Border Protection), Agency.
Eugene A. Cavicchi v. Department of Homeland Security
01A53381
September 12, 2005
.
Eugene A. Cavicchi,
Complainant,
v.
Michael Chertoff,
Secretary,
Department of Homeland Security,
(U.S. Customs and Border Protection),
Agency.
Appeal No. 01A53381
Agency Nos. 04-008C/04-4026
03-2534T
Hearing Nos. 150-2004-00398X
150-2004-00399X
DECISION
Complainant timely initiated an appeal from the agency's final
order concerning two consolidated complaints of unlawful 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. The appeal is
accepted pursuant to 29 C.F.R. � 1614.405.
During the relevant time, complainant was employed as a Customs and
Border Patrol (CBP) Officer, GS-1890-11, at the agency's Miami Free Zone
in Miami, Florida. Complainant filed two formal complaints on August 15,
2003 and November 10, 2003, respectively. Therein, complainant claimed
that he was subjected to harassment and a hostile work environment in
reprisal for prior EEO activity. Complainant's complaints were comprised
of the following claims:<1>
(1) beginning March 2003, he was subjected to verbal abuse and ridicule
by other employees (Complaint 2, Agency No. 03-2534T);
(2) the agency failed to respond to his March 20, 2003 request to
be reassigned to the vehicle export examination station (Complaint 2,
Agency No. 03-2534T);
(3) on April 4, 2003, he was issued a letter of reprimand for
disrespectful conduct toward another employee (Complaint 1, Agency
No. 04-008C/04-4026);
(4) on April 14, 2003, he was reassigned from the seaport operations
to the Miami Free Zone unit (Complaint 2, Agency No. 03-2534T);
(5) he was ordered to send all U.S. Department of Agriculture personal
effects shipments to one particular warehouse, instead of sending
a proportionate share to a competing warehouse (Complaint 2, Agency
No. 03-2534T);
(6) on July 2003, the agency contacted an Employee Assistance Program
coordinator and reported that complainant needed assistance (Complaint 2,
Agency No. 03-2534T);
(7) on August 4, 2003, he was required to provide additional medical
documentation on a Form WH-380, Certification of Health Care Provider,
to support a request for leave without pay, from July 28 through October
13, 2003 (Complaint 2, Agency No. 03-2534T);
(8) on November 10, 2003, the agency allowed an employee to interfere
with the performance of complainant's duties and allowed a supervisor to
counsel complainant only about the incident that same day (Complaint 2,
Agency No. 03-2534T);
(9) on November 20, 2003, a supervisor counseled complainant not to
talk to a co-worker (Complaint 2, Agency No. 03-2534T);
(10) on November 26, 2003, the agency allowed a private citizen to
physically assault complainant in a work area (Complaint 2, Agency
No. 03-2534T);
(11) on December 2, 2003, he was accused of destructive conduct in the
work area on November 26, 2003 (Complaint 2, Agency No. 03-2534T);
(12) on December 5, 2003, he was required to provide medical
documentation to support an absence from work when documentation was
not required for such an absence (Complaint 2, Agency No. 03-2534T);
(13) on January 26, 2004, he was subjected to verbal abuse by a
supervisor (Complaint 2, Agency No. 03-2534T); and
(14) on February 5, 2004, he was ordered confined to his work cubicle
and the order was later rescinded (Complaint 2, Agency No. 03-2534T).
At the conclusion of the investigation, complainant received a copy of the
investigative report and requested a hearing before an EEOC Administrative
Judge (AJ). On June 24, 2004, the AJ issued an order consolidating the
complaints for hearing. Following a hearing on November 29 and 30,
2004, the AJ issued a decision finding no discrimination.
In her decision, the AJ concluded that complainant established a
prima facie case of reprisal discrimination because management was
aware of his prior protected activity. The AJ determined, however,
that the agency articulated legitimate, nondiscriminatory reasons for
its actions which complainant failed to show were pretextual. The AJ
further concluded that complainant was not aggrieved by the alleged
discriminatory events in claims (1), (6), (7), (12), (13) and (14).<2>
With respect to complainant's harassment and hostile work environment
claims, the AJ found that complainant failed to establish that he was
subjected to a hostile work environment, because the actions alleged
fail to rise to the level of actionable harassment under the regulations.
Regarding claim (1), the AJ found that complainant had serious conflicts
with two messengers and two named co-workers. The AJ further noted
that complainant complained that the two messengers, who were delivery
agents for shipping companies, were receiving preferential treatment
from the two named co-workers due to a conflict of interest. The AJ
determined that while complainant had a right to complain of practices
that he felt were in violation of the agency's rules, he had no right
to verbally abuse his co-workers. The AJ noted in her statement, one of
the two co-workers (C1) stated that on July 22, 2003, after complainant
asked her and another co-worker (C2) whose paperwork they were working
on, she did not answer complainant's question. C1 stated that after
complainant asked for the second time if they were working on a named
messenger's paperwork, she told complainant that "it was none of his
business." C1 stated that complainant "said he wanted to know and I
replied what did it matter, he refused to do them anyway." C1 stated
that complainant then "began ranting about 'putting a stop to this,'
things were going to be different from now on' and then began belittling
[C2] and me and then raving at the line."
The record further reflects that C2 stated that on July 22, 2003, she
assisted C1 with a named messenger's paperwork because there was no one
in line. C2 further stated that the named messenger later returned with
a box of pastries, and that complainant did not approve of this action.
C2 stated that complainant then asked a different messenger if they
had AMS paperwork because he did not want to process them. C2 stated
that complainant then asked C1 and her if they were still working on the
named messenger's paperwork and that the C1 informed complainant it was
none of his business. C2 stated that complainant "began to yell out."
Furthermore, C2 stated that she later asked complainant privately not
to raise his voice at her and C1.
The record reflects that complainant's second-line supervisor (S2)
stated that on March 11, 2003, she directed complainant to attend an all
employee mandatory meeting. S2 further stated that complainant questioned
her authority to give him a direct order. S2 stated that the office was
temporarily closed "during the mandatory weekly muster meetings to allow
all employees to attend the muster meeting." Furthermore, S2 stated that
she did not harass complainant by directing him to attend the March 11,
2003 meeting and future all employee mandatory meetings.
Regarding claim (2), the record reflects the Chief Inspector (Chief)
stated that as a permanent part-time Customs Inspector, complainant was
not permitted to participate in the local negotiated rotation procedures
by being reassigned to the vehicle export examination station. The Chief
further stated that only full time Customs Inspectors were permitted to
participate in the rotation.
Regarding claim (3), the record reflects that the former Supervisory
Customs Inspector (Inspector) stated that he was the recommending
official regarding the issuance of a Letter of Reprimand (LOR) based on
unprofessional behavior. The Inspector stated that on February 28, 2002,
complainant asked him about the status of his request for a transfer.
The Inspector stated that he informed complainant that it was not the
appropriate time to discuss the status because he was busy, but that
he would get back to complainant later. The Inspector stated that
complainant became disrespectful towards him "with the use of profanity
and a raised voice." The Inspector stated that at that point "I just
walked out, because I didn't want to have a verbal confrontation with
him, and I recognized that he was very agitated, and there were members
of the trade community present, because this was an office that has a
window to serve the public, and also inspectors within." Furthermore,
the Inspector stated that complainant's prior protected activity was
not a factor in his recommendation that complainant be issued a LOR.
With respect to complainant's claim that the Inspector informed him that
he would remove the LOR from his official personnel file in the office
and in Headquarters in Washington, D.C., the Inspector stated that he
did not tell complainant that he would remove the LOR from headquarters
"because I don't have the authority to do that." The Inspector further
stated that he removed the LOR from complainant's official personnel file
in the office because he was applying for a transfer "and I wanted to
help him any way I possibly could, and I knew that he was requesting
through channels at the port and I figured if I can help him by the
letter not being in his local file here, I could help him."
Regarding claim (4), complainant's former Supervisor (Supervisor) stated
that she approached her supervisor and the Port Director requesting that
complainant be reassigned to the Miami Free Zone unit because she needed
the extra assistance. The Supervisor further stated that while she was
an Acting Director in the in-bound counter, complainant did an "excellent
job" working at the in-bound counter. Furthermore, the Supervisor stated
that based on "our previous history and the fact that I needed help at
the zone, that was the reason why I was the one that made the suggestion
that he be assigned to the Miami free zone, which he was."
The record further reflects that the Chief stated that complainant was
reassigned to the Miami Free Zone "based upon staffing requirements needed
at that facility." The Chief further stated that he and the Supervisor
concurred with the Port Director's decision to reassign complainant.
Furthermore, the Chief stated that complainant's reassignment was not
in retaliation for objecting to his decision to channel personal effects
shipment to a particular warehouse that was owned by a close friend.
Regarding claim (5), the Chief stated that all personal effects shipments
at the Miami Seaport cargo are processed at the Miami Seaport 1500
building where the main CBP cargo personal resources are located.
The Chief further stated that the inspectors "at that site determine
which merchandise they wish to inspect, and then those same inspectors
perform the inspections at the Container Examination Station (CES)
located directly adjacent to the CPB offices in the 1500 building."
The Chief stated that "for logistical, trucking, efficiency, resources,
additional cost to the customer, and national security anti-terrorism
reasons, neither the cargo nor the inspectors who targeted the personal
effects are dispatched from off the Port of Miami to the other CES
located approximately 10 miles away."
Regarding complainant's claim that the Chief was channeling personal
effects shipments to a particular warehouse that was owned by a friend
who is a former agency employee, instead of sending a proportionate share
to competing warehouses, the Chief stated that he was not involved in
selecting shipments to be examined or directing merchandise. The Chief
further stated that the inspectors "who work those desks are solely
responsible for determining what they want to look at, and I'm a couple
steps removed from that."
Regarding claim (6), the Supervisor stated that she called the EAP because
she felt that complainant needed assistance. The Supervisor further
stated that during a meeting, complainant informed her that he had "a lot
on his mind, that he was having trouble sleeping at night, and that's
when - - and then he also said to me that I needed to make a decision
whose side did I want to be on." The Supervisor stated that another
reason she called the EAP was because she received a complaint from a
private citizen stating that complainant refused to process her paperwork.
Regarding claim (8), the Lead Inspector for the office during the
Supervisor's absence (Lead Inspector) stated that on November 10,
2003, complainant was seen talking to an individual in his cubicle
concerning clearing a shipment of personal effects. The Lead Inspector
further stated that he interrupted complainant, letting him know that
"he should not be doing that because informal entries are only done at
the main Seaport office at 1500 Port Blvd." The Lead Inspector stated
that complainant "became angry and raised his voice, ordered me out of
his cubicle, and told me to mind my own business." The Lead Inspector
stated that he noticed that the individual "was getting concerned, so I
apologized to her and explained that she should have been referred to the
Seaport" and left complainant's cubicle.
Regarding claim (9), the Supervisor stated that on November 20, 2003, she
counseled complainant not to talk to a co-worker because of an e-mail she
received from the co-worker. Specifically, the Supervisor stated that
on November 19, 2003, she received an e-mail from a co-worker stating
that she was uncomfortable with complainant's questions. The Supervisor
stated that in her e-mail, the co-worker stated that complainant would
ask her questions "'Why aren't you wearing your service issued gun?'
'What kind of injuries did you sustain?' 'How long are you going to
be here?' 'How long are you going to be on Workers' Compensation?'
'Why are you not working in-bound?'" The Supervisor stated that she
counseled complainant not to ask the co-worker questions concerning
her medical history, injury, Workers' Compensation, and her service
issued gun. The Supervisor stated that complainant's prior EEO activity
was not a factor when she counseled him not to speak to the co-worker.
Furthermore, the Supervisor stated "my counseling was because of the
fact that I received a written complaint from the employee."
Regarding claim (10), the Acting Supervisor stated that he did not
witness a November 26, 2003 altercation between complainant and the
private citizen that arose when the private citizen sat on a trash bin.
However, the Acting Supervisor stated that he investigated the incident
by questioning individuals including complainant and the private citizen,
in accordance with the agency's internal policy. The Acting Supervisor
stated that there were no witnesses to the incident, and that complainant
and the private citizen provided different versions of what transpired.
The Acting Supervisor stated that based on his investigation, he
determined that no one could have prevented the incident "because
either way, it just was a momentary thing and it's not - - there was
nothing long, drawn out." The Acting Supervisor further stated that
he did not find any employee had failed to act following the incident.
Furthermore, the Acting Supervisor stated after that the police were
contacted on this matter, he shared his findings with them.
Regarding claim (11), the Supervisor stated that she called complainant
into her office to discuss the �trash bin� incident of November 26, 2003
incident, among other issues. The Supervisor stated that following
the November 26, 2003 altercation, she noticed that complainant moved
the zone unit's trash bin that was used for drivers from the hallway into
their office. The Supervisor stated that she asked complainant why he
moved the trash bin because it was not his property. The Supervisor
stated that she told complainant if he had any suggestions "to make
things better, he needs to run his suggestion by me first."
The record reflects that the Acting Supervisor stated that during the
December 2, 2003 counseling, the Supervisor asked complainant about
other matters as well. The Acting Supervisor stated that the Supervisor
asked complainant about the processing of in-bounds, because he had been
processing in-bounds in a manner that was not in accordance with policy.
Specifically, the Acting Supervisor stated that the Supervisor pointed out
to complainant that he was to input information and data into the system
and perforating the documents before returning them to individuals in
accordance with policy. The Acting Supervisor stated that complainant
was "very hostile towards [Supervisor], insulted her in front of me,
stated that she didn't know what she was doing." Furthermore, the Acting
Supervisor stated that complainant then stormed out of the Supervisor's
office slamming the door, ending the counseling session.
Regarding claim (12), the record reflects that the Supervisor acknowledged
calling complainant requesting that he bring in a doctor's note concerning
his three-day absence. Specifically, the Supervisor stated that she was
advised by a Labor Employee Relations Specialist to call complainant,
and "I was following labor employees relations advice to give him a call
to tell him that he needed to have a doctor's note upon his return."
The Supervisor stated that she was subsequently advised that she received
incorrect information, and apologized to complainant "for making the
mistake."
Regarding claim (13), the record reflects that the Supervisor stated "I
counseled [an agency official], and a letter was placed in her personnel
file folder about the counseling because this was the second time to my
knowledge that she had used profanity towards [Complainant]."
Regarding claim (14), the record reflects that the Supervisor stated that
she received a telephone call from the Acting Port Director stating that
they received "too many" complaints about complainant and that they would
have to restrain complainant. The Supervisor further stated that she then
telephoned the Port Director to express her concerns about the complaints
they were receiving internally and from the public concerning complainant.
Specifically, the Supervisor stated that "every day it was [Complainant]
arguing, he's very argumentative, arguing, challenging a procedure,
disagreeing, fussing, complaining, he's going to have everybody fired,
loud outbursts." The Supervisor stated that complainant made it a
"very unpleasant place to work."
Further, the record reflects that the Port Director stated that after
the Assistant Port Director issued complainant an order to remain in
his work space, the Assistant contacted the Labor Employee Relations
and was informed that he needed to rescind the order "and he did so."
The Port Director further stated that the order was in effect for
"twenty minutes, a half hour, something like that."
On March 15, 2005, the agency issued a final order implementing the
AJ's decision.
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as �such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.� Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held.
A claim of disparate treatment is examined under the three-part analysis
first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792
(1973). For complainant to prevail, he must first establish a prima
facie case of discrimination by presenting facts that, if unexplained,
reasonably give rise to an inference of discrimination, i.e., that
a prohibited consideration was a factor in the adverse employment
action. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction
Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to
the agency to articulate a legitimate, nondiscriminatory reason for
its actions. See Texas Department of Community Affairs v. Burdine,
450 U.S. 248, 253 (1981). Once the agency has met its burden, the
complainant bears the ultimate responsibility to persuade the fact finder
by a preponderance of the evidence that the agency acted on the basis of
a prohibited reason. See St. Mary's Honor Center v. Hicks, 509 U.S. 502
(1993).
This established order of analysis in discrimination cases, in which the
first step normally consists of determining the existence of a prima
facie case, need not be followed in all cases. Where the agency has
articulated a legitimate, nondiscriminatory reason for the personnel
action at issue, the factual inquiry can proceed directly to the third
step of the McDonnell Douglas analysis, the ultimate issue of whether
complainant has shown by a preponderance of the evidence that the
agency's actions were motivated by discrimination. See U.S. Postal
Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983);
Hernandez v. Department of Transportation, EEOC Request No. 05900159
(June 28, 1990); Peterson v. Department of Health and Human Services,
EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of
the Navy, EEOC Petition No. 03900056 (May 31, 1990).
The Commission determines that the AJ's findings of fact are supported
by substantial evidence in the record and that the AJ's decision properly
summarized the relevant facts and referenced the appropriate regulations,
policies, and laws. We note that complainant failed to present evidence
that the agency's actions were motivated by discriminatory animus toward
complainant's prior EEO activity. We discern no basis to disturb the
AJ's decision.
Moreover, we note that complainant, on appeal, raises new claims of a
hostile work environment relating to additional actions purportedly taken
by the Supervisor. We note that these claims were not previously raised.
It is inappropriate for complainant to raise these new claims for the
first time as part of his April 2005 appeal.
After a careful review of the record, we AFFIRM the agency's final order,
implementing the AJ's finding of no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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), 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 19848,
Washington, D.C. 20036. 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 (S0900)
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 (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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
September 12, 2005
__________________
Date
1For ease of reference, the Commission has
re-numbered complainant's claims as claims (1) - (14).
2As the record clearly indicates that complainant withdrew claim (7)
during the November 29, 2004 hearing, we will not further address claim
(7) in our decision.