Narciso S. Fernandez, Complainant,v.Janet Napolitano, Secretary, Department of Homeland Security (Customs and Border Protection), Agency.

Equal Employment Opportunity CommissionDec 13, 2011
0120111053 (E.E.O.C. Dec. 13, 2011)

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.

29 C.F.R. § 1614.604(c).

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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0120111053