0120111053
12-13-2011
Narciso S. Fernandez, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security (Customs and Border Protection), Agency.
Narciso S. Fernandez,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security
(Customs and Border Protection),
Agency.
Appeal No. 0120111053
Hearing No. 510-2009-00114X
Agency No. HS-08-CBP-006622-09011
DECISION
On December 13, 2010, Complainant filed an appeal from the Agency’s
November 5, 2010, final decision 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. The Commission accepts the appeal
pursuant to
29 C.F.R. § 1614.405(a). For the following reasons, the Commission
AFFIRMS the Agency’s final decision.
ISSUES PRESENTED
The issues presented are: (1) whether the Agency properly dismissed
claims 3 and 4; and (2) whether Complainant established that, from October
2007 to June 2008, the Agency subjected him to hostile work environment
harassment on the basis of sex.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as an Enforcement Officer at the Agency’s Miami, Florida International
Airport, Enforcement Unit. Complainant’s supervisor was the Chief
CBP Officer (C1).1 Complainant’s estranged wife (EW) was also an
Enforcement Officer in the unit. In October 2007, when he joined the
unit, Complainant and EW were going through a divorce.2 Complainant
stated that C1 began harassing him soon after he joined the unit.
On June 19, 2008, Complainant contacted an EEO Counselor. On July
11, 2008, Complainant filed an EEO complaint alleging that the Agency
subjected him to hostile work environment harassment on the basis of sex
(male) from October 2007 to June 2008. Complainant cited the following
incidents of harassment:
1. Beginning in October 2007, in order to avoid contact between him
and EW, management adjusted his duty assignments and work schedule,
sent him home early, and limited his overtime opportunities;
2. Beginning in October 2007, C1 shared personal information about
him with new Enforcement Officers and permitted EW to publicly discuss
his divorce;
3. From January 9 – 28, 2008, management reassigned him to the Hard
Secondary unit; and
4. On June 19, 2008, management instructed him to attend Basic Enforcement
Training on July 29, 2008.
Regarding claim 1, Complainant alleged that C1 did not select him for
certain duties and scheduled him and EW on different shifts to make sure
that they did not work together. In addition, Complainant alleged that
C1 sent him home early on one occasion in May 2008 when EW arrived at
work upset. Further, Complainant alleged that, in deciding to keep him
and EW separate, C1 frequently did not assign him the type of work that
would allow for overtime. Complainant’s Aff., at 3-6.
Regarding claim 2, Complainant alleged that C1 publicly announced to new
Enforcement Officers on March 6, 2008, “[Complainant] is married and
[he and EW] are going through a divorce and they are not supposed to work
together.” In addition, Complainant alleged that C1 portrayed him in
the office as a “villain” and a “jealous husband.” Further,
Complainant alleged that, by bringing up his personal business, C1
“created walls and a stigma that [he] could not work with a certain
person.” Finally, Complainant alleged that EW often came into the unit
“shouting at the top of her lungs about the divorce.” Complainant
cited a May 20, 2008 incident when EW came in and said, “He’s taking
my money! What am I going to do?” Id. at 6-8.
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 EEOC Administrative Judge (AJ).
Complainant timely requested a hearing but subsequently withdrew his
request. Consequently, 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 him to discrimination and
harassment as alleged.
Initially, the Agency dismissed claims 3 and 4 for procedural reasons.
The Agency dismissed claim 3 pursuant to 29 C.F.R. § 1614.105(a)(1),
for untimely EEO Counselor contact. Specifically, the Agency found that
Complainant’s June 19, 2008 EEO Counselor contact was beyond the 45-day
limitation period. The Agency dismissed claim 4 pursuant to
29 C.F.R. § 1614.107(a)(1), for failure to state a claim. Specifically,
the Agency found that Complainant was not aggrieved because management
had excused his attendance at the July 29, 2008 training session.
Next, the Agency analyzed claim 1 under a disparate treatment theory.
The Agency found that Complainant failed to prove that the legitimate,
nondiscriminatory reasons articulated by management were a pretext for sex
discrimination. Finally, the Agency analyzed claims 1- 4 under a hostile
work environment theory. The Agency found that the record contained no
evidence that the alleged incidents were based on Complainant’s sex.
In addition, the Agency found that the alleged incidents were not
sufficiently severe or pervasive to constitute harassment.
CONTENTIONS ON APPEAL
By facsimile on February 12, 2011, Complainant submitted a statement
in support of his appeal. The Commission declines to consider
Complainant’s statement, as it was untimely filed. The record reflects
that the Commission had granted Complainant an extension of time until
February 11, 2011. Complainant offered no justification for the delay.
The Agency did not submit a statement or brief in opposition to
Complainant’s appeal.
ANALYSIS AND FINDINGS
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
(EEO MD-110), at Ch. 9, § VI.A. (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”).
Claim 3
EEOC Regulation 29 C.F.R. § 1614.107(a)(2) provides that an agency shall
dismiss a complaint that fails to comply with the applicable time limits
contained in § 1614.105, unless the agency extends the time limits in
accordance with § 1614.604(c). EEOC Regulation
29 C.F.R. § 1614.105(a)(1) requires that complaints of discrimination
should be brought to the attention of the EEO Counselor within forty-five
(45) days of the date of the matter alleged to be discriminatory or,
in the case of a personnel action, within forty-five (45) days of the
effective date of the action.
EEOC Regulation 29 C.F.R. § 1614.105(a)(2) provides that an agency or
the Commission shall extend the time limits when the individual shows
that he was not notified of the time limits and was not otherwise aware
of them, that he did not know and reasonably should not have known that
the discriminatory matter or personnel action occurred, that despite
due diligence he was prevented by circumstances beyond his control from
contacting the EEO Counselor within the time limits, or for other reasons
considered sufficient by the agency or the Commission. Time limits are
also subject to waiver, estoppel, and equitable tolling.
Upon review, we find that the Agency properly dismissed claim 3 for
untimely EEO Counselor contact. The record discloses that the alleged
discriminatory event occurred in January 2008, but Complainant did not
initiate contact with an EEO Counselor until June 19, 2008, which is
beyond the 45-day limitation period. Complainant presented no argument
or evidence warranting an extension of the time limit for initiating
EEO Counselor contact. We also note that Complainant did not respond
to the Agency’s August 14, 2008 letter requesting information on why
he failed to timely contact an EEO Counselor. Accordingly, we affirm
the Agency’s dismissal of claim 3.
Claim 4
The regulation set forth at 29 C.F.R. § 1614.107(a)(1) provides that an
agency shall dismiss a complaint that fails to state a claim. The agency
shall accept a complaint from any aggrieved employee or applicant
for employment who believes that he or she has been discriminated
against by that agency because of race, color, religion, sex, national
origin, age or disabling condition. 29 C.F.R. §§ 1614.103, .106(a).
The Commission’s federal sector case precedent has long defined an
“aggrieved employee” as one who suffers a present harm or loss with
respect to a term, condition, or privilege of employment for which there
is a remedy. Diaz v. Dep’t of the Air Force, EEOC Request No. 05931049
(Apr. 21, 1994).
Upon review, we find that the Agency properly dismissed claim 4 for
failure to state a claim. The record reflects that Complainant informed
an EEO Specialist on August 14, 2008 that management had excused his
attendance at the July 29, 2008 training session. Because Complainant was
not required to and did not attend the July 29, 2008 training session,
Complainant suffered no harm or loss with respect to a term, condition,
or privilege of employment for which there is a remedy. Accordingly,
we affirm the Agency’s dismissal of claim 4.
Harassment – Claims 1 and 2
To establish a claim of harassment 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 find that Complainant failed to establish a
claim of actionable harassment. Specifically, we find that Complainant
did not prove, by a preponderance of the evidence, that the harassment
complained of was based on his sex.
First, we note that C1 articulated legitimate, nondiscriminatory reasons
for his actions. Regarding duty assignments and work schedules,
C1 attested that he assigned Complainant and EW to opposite teams3
to minimize their contact on the job because they were married and
because he was aware that they were having marital problems. ROI,
Ex. F3, at 2. Regarding being sent home early, C1 attested that he told
an Acting Supervisor (AS1) to send Complainant home that day because
Complainant’s shift was over.4 Id. at 7. Similarly, AS1 attested that
he sent Complainant home that day because Complainant’s shift was over.
ROI, Ex. F7, at 4. Regarding overtime opportunities, C1 attested that
Complainant earned more overtime in Fiscal Year (FY) 2008 than EW did.
ROI, Ex. F3, at 2. For FY 2008 (as of July 5, 2008), the record reflects
that Complainant worked 566 overtime hours – more hours than all but
one of the Enforcement Officers in his unit – and EW worked only 493.3
overtime hours. ROI, at Ex. F10b. Regarding his comment to the new
Enforcement Officers, C1 attested, “Because these officers had known
Complainant and [EW] as husband and wife, I did mention that Complainant
and [EW] were having problems and that I expected them not to talk about
it, not to make jokes, and to let them deal with their problems without
interference.” ROI, Ex. F3, at 3.
Second, we note that Complainant appears to argue that the harassment
may have been motivated by a nondiscriminatory reason – a romantic
relationship between C1 and EW – unrelated to his sex. For example,
Complainant stated that “[C1] has applied discriminatory preferences on
behalf of [EW] and has failed to administer equitable treatment towards
me.” Formal Complaint, at 6. In addition, Complainant averred, “I
think [C1] has taken a biased position against me because he and [EW]
have more than a professional relationship.” Complainant’s Aff.,
at 10. Further, Complainant averred, “[C1]’s actions have given
[EW] advantages over me … C1]’s familiarity and inappropriate
relationship with [EW] has caused me suffering at work. Id. at 11.
Moreover, Complainant testified, “Well, based on also their extramarital
affair [C1] wanted me out of the unit, basically. He went through
certain measures -- “ Complainant’s Depo. Tr., at 25. Finally,
Complainant responded “Yes” when asked if the reason for C1’s
actions “was that [C1] was having an extramarital affair with [EW]
and he didn’t want you around; is that correct?” Id. at 25-26.
Third, we note that Complainant disagrees with C1’s stated reasons
for the alleged actions. We emphasize, however, that a hearing
“provides the parties with a fair and reasonable opportunity to
explain and supplement the record and, in appropriate instances, to
examine and cross-examine witnesses.” EEO MD-110, at Ch. 7, § I.
Had Complainant not withdrawn his request for a hearing, he would have
had the opportunity to cross-examine C1 and the AJ could have made
credibility determinations based on C1’s testimony. As Complainant
chose to withdraw his request for a hearing, we do not have the benefit of
an AJ’s credibility determinations after a hearing; therefore, we can
only evaluate the facts based on the weight of the evidence presented
to us. We are simply not persuaded, based on the record before us,
that Complainant has shown that C1’s actions were motivated by his sex.
Accordingly, we find that Complainant has not established, by the
preponderance of the evidence, that he was subjected to harassment on
the basis of sex.
CONCLUSION
Based on a thorough review of the record, we AFFIRM the Agency’s
final decision.
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 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
___12/13/11_______________
Date
1 From October 2007 to March 2008, C1 was Complainant’s first level
supervisor. Beginning in March 2008, C1 was Complainant’s second
level supervisor.
2 EW moved out of the marital home in October 2007 and the divorce was
finalized in July 2008. Complainant’s Depo. Tr., at 22.
3 The 28 Enforcement Officers in the unit were divided into two teams:
one team worked from 7:00 a.m. to 3:00 p.m. and the other team worked from
1:00 p.m. to 9:00 p.m. The two teams rotated shifts. ROI, at Ex. F10a.
4 C1 explained that AS1 informed him that Complainant was standing behind
the door listening to a conversation between AS1 and EW in AS1’s office.
ROI, Ex. F3, at 7.
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0120111053
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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