Myesha F.,1 Complainant,v.Kevin McAleenan, Acting Secretary, Department of Homeland Security (Customs and Border Protection), Agency.

Equal Employment Opportunity Commission

Apr 9, 2019

0120182031 (E.E.O.C. Apr. 9, 2019)

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

Myesha F.,1
Complainant,

v.

Kevin McAleenan,
Acting Secretary,
Department of Homeland Security
(Customs and Border Protection),
Agency.

Appeal No. 0120182031
Agency No. HSCBP263332016

DECISION

On May 23, 2018, 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
March 6, 2018, 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. For the following reasons, the Commission AFFIRMS
the Agency’s final decision.

ISSUES PRESENTED

Whether the final agency decision (FAD) correctly found that Complainant was not subjected to
harassment based on her sex when:

1. In 2012, her co-worker (CW-1) yelled and used profanity in an attempt to physically
intimidate her.

2. In 2012, CW-1 made her work environment uncomfortable causing her not to extend a detail.

3. In 2012, CW-1 became loud and aggressive after Complainant made a comment regarding a
Union grievance.

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.
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4. From the beginning of 2016 to May 2, 2016, CW-1 routinely leaned over two manager’s
desks in an overly sexual manner.

5. On May 2, 2016, CW-1 yelled at Complainant and attempted to physically intimidate her.

6. On May 2, 2016, the Patrol Agent in Charge-1 (PAIC-1) escorted Complainant to his office.

7. On May 5, 2016, PAIC-1 ordered Complainant to provide memo concerning the events of
May 2, 2016.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Border Patrol Agent
(BPA) [Intelligence], GS-1896-12 at the Agency’s El Centro Sector Border Patrol Sector facility in
El Centro, California. On August 2, 2016, Complainant filed an EEO complaint alleging that the
Agency discriminated against her on the basis of sex (female) as set forth above.

Claim 1

Complainant alleged that CW-1 would routinely engage her in loud discussions inside the
intelligence office; and that the volume and content of the conversations were rude and
unprofessional. She recalled one conversation in which CW-1 criticized a male co-worker who was
not present.

She indicated that she and a fellow Border Patrol Agent, (BPA-1) confronted CW-1 and requested
she move the conversation to another location in order to stop the disruption; however, CW-1
postured herself and displayed hostile body language. Complainant maintained she did not engage
CW-1, and that CW-1 subsequently stomped out of the office.

Complainant did not state whether CW-1 made any references regarding her sex; however, she
alleged that CW-1 was not similarly hostile towards males and, instead, was openly friendly,
flirtatious, and often unprofessional. Complainant also stated that CW- 1’s behavior was reported
to the Field Office Supervisor (FOS), but claimed the FOS told her that it was just how CW-1 was,
and that all involved parties received a reprimand.

CW-1 denied having ever used profanity towards Complainant and denied taking any action based
on her sex. CW-1 refuted Complainant’s account of the events and maintained Complainant did not
report any concerns regarding the incident to her.

BPA-1 recalled the incident and stated that CW-1 had screamed at Complainant and another fellow
BPA, (BPA-5) who reported the incident, and that CW-1 was subsequently moved to a different
office. BPA-5 confirmed that she witnessed CW-1 yell at Complainant on several occasions
regarding work assignments, and she maintained that CW-1 was rude and unprofessional and made
the work environment uncomfortable for other female agents.

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Claim 2

Complainant asserted that she voluntarily made the decision to not extend her detail in December
2012, due to CW-1’s “nonstop hostility.” Complainant cited relentless altercations, false reports, and
CW-1’s willingness to break the codes of conduct as the motivating factors for her decision to not
extend her detail; however, she did not provide any specific dates of incidents, or specific examples.

She stated that she believed CW-1 received favorable treatment from management due to her overtly
sexual attitude and appearance, which allowed CW-1 to maintain a pattern of hostile behavior
towards her and other females. Complainant acknowledged that she did not discuss her decision or
the reasons for it with management because she stated that she did not want to risk retaliation and
wanted to put distance between herself and CW-1.

BPA-5 maintained that CW-1 was also the reason why she did not complete her detail extension but
provided no information regarding Complainant’s claim.

CW-1 denied having negatively affected Complainant’s decision to not extend her detail and asserted
that she did not behave inappropriately with Complainant at any time. She maintained that she had
no control or input in Complainant’s decision to extend, continue, change, or modify any of her
duties, and denied considering her sex as a discriminatory factor. CW-1 indicated that she and
Complainant worked another detail in 2014, and Complainant did not report any concerns or
terminate that detail at that time.

In rebuttal, Complainant acknowledged that she was in the same office as CW-1 in 2014; however,
she stated that this was because CW-1 followed her there. She provided no new evidence in support
of her claim that the incident was based on her sex.

Claim 3

Complainant alleged an unidentified Union representative discussed a Union grievance filed by
BPA-1 against CW-1 with CW-1. She acknowledged that the incident was not based on her sex and
that she did not report it to management, but argued the incident violated grievance rules and that
CW-1 received favorable treatment.

CW-1 indicated that she did not recall any incident involving a Union grievance with Complainant
but maintained she had not behaved aggressively with Complainant at any point in time or considered
her sex as a discriminatory factor.

Claim 4

Complainant alleged that CW-1 routinely leaned over the Supervisory BPA’s (SBPA’s) and Patrol
Agent in Charge-1 (PAIC-1’s) desk in an inappropriate, unprofessional, and sexual fashion; and
that CW-1 drew attention to their interactions by laughing and talking at an unreasonably loud
volume. Complainant acknowledged that CW-1 never directed her behavior at her and conceded
she did not believe CW-1’s behavior was due to her sex; however, she alleged that CW-1’s
behavior made it clear she had a special relationship with the SBPA and PAIC-1.

CW- 1 denied that she leaned over anyone’s desk in a sexual manner.
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Claim 5 - 7

Complainant alleged that she was in an altercation with CW-1 on May 2, 2016. She explained that
the altercation occurred following a directive by the Special Operations Supervisor (SOS) for her
to carry some supplies from CW- 1’s vehicle in the parking lot to the supply closet. She claimed
that, during the transport of supplies, she was confronted by CW-1, who stomped loudly and
shouted, “What were you trying to say earlier?” She stated that she responded to CW-1 that she
was trying to find out whether CW-1 was on light duty because she had not carried any supplies.

Complainant alleged that by that point, CW-1 had closed the distance between them and had
Complainant with her back to the wall. She alleged that CW-1 pointed her finger in her face,
began yelling and demanding answers, and got closer. Complainant indicated that, in response,
she had her hands up and asked CW-1 to lower her voice because they were in an office. She
stated that CW-1 stopped her verbal attack when she realized how silent it had become and PAIC-
1 requested that Complainant go into his office. She maintained that PAIC-1 attempted to solve
the situation during the meeting in his office by stating that CW-1 was scheduled to move
elsewhere on a detail within two weeks, and that he would handle the situation. Complainant
indicated, however, that by the end of the day, she heard PAIC-1 stop by CW-1’s office and he
talked in a light hearted and jovial tone with her.

Complainant stated that she believed CW-1’s behavior was due to her sex because she questioned
why CW-1 was not required to carry supplies from her car; she also alleged that had she been a
male, CW- 1 would have been expected to carry her items by PAIC-1 and the confrontation would
not have occurred.

Complainant also alleged that PAIC-1’s actions in escorting her to his office were based on her
sex because she was made to look guilty and as if she had initiated the altercation, while CW-1
was protected by management. She contended that if she and CW-1 had been males in an
altercation, management would have handled the situation differently.

CW-1 challenged Complainant’s account of the events and asserted that the incident was still under
investigation. She alleged that PAIC-1 had assigned Complainant to collect supplies from her
vehicle because she was busy assisting PAIC-1 with paperwork. She claimed that Complainant
subsequently confronted her because she was indignant she had been assigned the task. She denied
having raised her voice at Complainant or having considered Complainant’s sex as a
discriminatory factor. CW-1 alleged that rather, it was Complainant who created a hostile work
environment.

PAIC-1 denied having considered Complainant’s sex as a factor in his interaction with
Complainant and denied having subjected her to harassment.

SOS indicated that both Complainant and PAIC-1 verbally informed him of the incident; and that
PAIC- 1 requested that he speak to Complainant about professionalism. He claimed that he
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discussed the incident with Complainant; however, Complainant indicated she needed time to
think about her next course of action.

SOS maintained that he had not witnessed any evidence of harassment and did not receive any
other reports regarding CW-1’s behavior.

The Enforcement Analyst Specialist also provided information regarding the incident. She stated
that the incident began after Complainant became upset when she confronted CW-1 about the
assignment and noted that she did not perceive the environment to be hostile.

In rebuttal, Complainant refuted having initiated the altercation and stated the incident was started
after she spoke to PAIC-1 in front of CW-1; however, she provided no further evidence in support
of her assertion that the incident was based on her sex.

Complainant alleged that she reported the incident with a memo and supporting documentation
submitted to SOS and the Acting Division Chief. She maintained that the memorandum was
initially requested by PAIC-1; however, she received permission from the SOS to file it with other
members of management because she did not trust PAIC-1 to handle the situation.

SOS acknowledged that Complainant requested to submit her memorandum directly to him
because she did not feel comfortable submitting it to PAIC-1, and he stated that he informed
Complainant that he would comply with her request and submit her report directly to the Acting
Division Chief. He also indicated that he offered Complainant the opportunity to draft her
memorandum off-site so that she could do so without interruptions.

Complainant also stated that she subsequently met with the Deputy Chief Patrol Agent (DCPA)
on an unidentified date; she claimed that she was however issued a cease and desist letter and was
instructed to not engage in any type of altercation with CW-1 moving forward. She acknowledged
that CW-1 was moved by the DCPA to the El Centro station, but did not state whether there was
any other subsequent action or whether the harassment continued.

The Acting Division Chief acknowledged that he received a memorandum from Complainant
detailing the incident with CW-1; he claimed that, in response to her report, both CW-1 and PAIC-
1 were reassigned, and an investigation was initiated into the matter. He did not state whether the
investigation yielded any findings or whether any further action was taken.

Complainant argued that PAIC-1’s request for her to submit a memorandum on short notice was
inappropriate as she felt he had done so in order for her to rush her memorandum and downplay
the incident with CW-1. Complainant also asserted that it was a conflict of interest for PAIC-1 to
receive the memorandum, as he had been directly involved in the incident and she believed he
wanted to assist CW-1 with filing a counter claim.

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She claimed that PAIC-1’s actions were motivated by her sex as she did not believe he would have
made the same request from a male coworker but did not provide any direct evidence in support
of her claim.

PAIC-1 stated that he did not specifically recall ordering Complainant to submit a memorandum;
however, he indicated that, if he did, it would have been so that Complainant would have a chance
to tell her side of the story in the interest of parity. He denied having considered Complainant’s
sex as a discriminatory factor.

The Agency maintained that it took remedial action by reassigning both PAIC-1 and CW-1 and by
initiating an investigation into the alleged altercation incident.

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. In accordance with Complainant’s request, the
Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that
Complainant failed to prove that the Agency subjected her to discrimination as alleged.

CONTENTIONS ON APPEAL

On appeal, Complainant, among other things, reiterates her allegations and contentions. She also
argues that the focus of the Agency’s investigation was on the most trivial parts of her complaint
and that it failed to address the most pertinent issues including her May 2, 2016, altercation with
CW-1; that it focused on less verifiable events that could no longer be proven due to time delays;
and that the mishandling of her case and lack of a proper fact finding investigation has left her
with an unfavorable outcome. Complainant also expressed frustration over her delayed receipt of
the FAD.

In response to Complainant’s frustration regarding a two-month delay in her receipt of the FAD,
the Agency asserts that the delay appears to have been due to a typographical error which was
corrected via email on the date on which Complainant received the FAD; and that Complainant
has not alleged any prejudice caused by the inadvertent error, and she was still afforded the
opportunity to file an appeal with the Commission or a District Court.

With respect to Complainant’s issue regarding the timeline of the investigation, the Agency asserts
that Complainant granted the EEO investigator an extension for the completion of the Report of
Investigation (ROI) in writing. Regarding Complainant’s contention that the investigation did not
focus enough on the events of May 2, 2016, and instead focused on the “trivial parts” of her
complaint, the Agency asserts that its investigation delved into each issue that Complainant raised.
Finally, the Agency asserts that its attention to each of Complainant’s claims was proper, and that
its FAD should be affirmed.
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STANDARD OF REVIEW

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, at Chapter 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”).

ANALYSIS AND FINDINGS

To establish a case of discriminatory harassment and hostile work environment, a complainant
must show that: (1) they belong to a statutorily protected class; (2) they were subjected to
harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3)
the harassment complained of was based on their statutorily protected class; (4) the harassment
affected a term or condition of employment and/or had the purpose or effect of unreasonably
interfering with the work environment and/or creating an intimidating, hostile, or offensive work
environment; and (5) there is a basis for imputing liability to the employer. See Henson v. City of
Dundee, 682 F.2d 897 (11th Cir. 1982). Further, the incidents must have been “sufficiently severe
or pervasive to alter the conditions of [complainant’s] employment and create an abusive working
environment.” Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). The harasser’s conduct
should be evaluated from the objective viewpoint of a reasonable person in the victim’s
circumstances. Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No.
915.002 at 6 (Mar. 8, 1994).

Upon review of the record, we do not find that Complainant established that she was subjected to
harassment based on her sex. Although the record indicates that CW-1 might have been a
disagreeable person who had a contentious relationship with Complainant, there is no persuasive
evidence that her conduct was in any way related to Complainant’s sex. Complainant admitted
that at least two of the alleged incidents were not based on her sex. She also admitted that CW-1
had arguments with many of the men in the office,” showing that any allegedly harassing conduct
was not based on a protected class. We further find that theses matters were neither severe nor
pervasive and appear to have been work-related incidents that sometimes arise in the workplace.
The Commission notes that Title VII is not a civility code. Rather, it forbids “only behavior so
objectively offensive as to alter the conditions of the victim’s employment.” Oncale v. Sundowner
Offshore Serv., Inc., 523 U.S. 75, 81 (1998). To the extent Complainant alleged that CW-1
engaged in sexually suggestive conduct with SBPA-1 and PAIC-1; and therefore, received more
favorable treatment than she did, we note that Complainant did not provide any evidentiary support
for her allegations, i.e., there were no witness statements to corroborate her claims that CW-1
routinely suggestively leaned over desks. In sum, the totality of the evidence does not show any
severe or pervasive conduct that supports Complainant’s hostile work environment allegations;
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and her descriptions of frustration with her work assignments and perceived harassment do not
constitute unlawful conduct that would negatively impact the terms of her employment.

Finally, we note that because Complainant did not request a hearing before an Administrative
Judge, she failed to avail herself of the discovery process which would have allowed for an
examination of the credibility or lack thereof of the Agency’s explanations. We can only evaluate
the facts based on the weight of the evidence presented to us.
We therefore find that Complainant has failed to substantiate her allegations that she was subjected
to discriminatory harassment as alleged.

CONCLUSION

Upon careful review of the record, as well as the arguments and documents submitted on appeal,
we AFFIRM the Agency’s final decision.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party shall have
twenty (20) calendar days of receipt of another party’s timely request for reconsideration in
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). All requests and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission. Complainant’s request may be
submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131
M Street, NE, Washington, DC 20507. 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 agency’s request must be submitted
in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. §
1614.403(g). The request or opposition must also include proof of service on the other party.
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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 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. 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

April 9, 2019
Date