U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 a/k/a Rolf K.,1 a/k/a Rosario D., a/k/a Adan N., a/k/a Scarlet M., a/k/a Ayesha W., a/k/a Towanda B., a/k/a Rico M., a/ka Chadwick W., Complainants, v. Alejandro N. Mayorkas, Secretary, Department of Homeland Security (Customs and Border Protection), Agency. Appeal Nos. 2022002803, 2022002804, 2022002805, 2022002806, 2022002807, 2022002808, 2022002809, 2022002810 Hearing No. 510-2019-00011X Agency Nos. HS-CBP-00639-2018, HS-CBP-00719-2018, HS-CBP-00804-2018, HS-CBP- 00599-2018, HS-CBP-00598-2018, HS-CBP-00585-2018, HS-CBP-00694-2018, & HS-CBP- 00560-2018 1 This case has been randomly assigned pseudonyms which will replace Complainants’ names when the decision is published to non-parties and the Commission’s website. 2022002803, 2022002804, et al. 2 DECISION Complainants filed timely appeals, with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s March 22, 2022, final order concerning their equal employment opportunity (EEO) complaints 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 the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. At the time of events giving rise to this complaint, Complainants were employed by the Agency as Customs Border Patrol Officers (CBPO), GS-1895-12, at the Port of Tampa in Tampa, Florida. Between January 18, 2018, and March 8, 2018, Complainants filed EEO complaints alleging discrimination by the Agency on basis of sex when, on or about November 30, 2017, Complainants learned that they did not receive the shift and location that they bid for during the fiscal year (FY) 2018 bid, rotation and placement (BRP) process. We note that one complainant, Rico M., also alleged discrimination on the basis of age. After its investigations into the complaints, the Agency provided Complainants with copies of the reports of investigation and notices of right to request a hearing before an Equal Employment Opportunity Commission (EEOC or Commission) Administrative Judge (AJ). Complainants timely requested hearings. On October 22, 2018, the assigned EEOC AJ issued a Notice of Intent to decide the complaints without a hearing. On November 5, 2018, the AJ issued an Order consolidating the eight complaints into one case number and granting an extension of time to file a response to the Notice of Intent. On May 7, 2021, the AJ vacated the Notice of Intent. The AJ found that the evidence of record established that the Agency’s decision to designate CBPO positions as female-only was facially discriminatory, as sex was used to determine workers’ shifts/scheduling. However, the AJ determined that while the Agency supported two of the three prongs of its bona fide occupational qualification defense, it failed to demonstrate that no reasonable alternatives were available to protect those interests other than the sex-based policy it implemented. The AJ ordered the parties to supplement the record with evidence of what reasonable alternatives existed that were considered by the Agency in lieu of implementing the sex-based scheduling policy, and why it reduced the number of female-only slots from six to three. On September 14, 2021, the AJ heard limited testimony on the eight complaints, which were consolidated under EEOC Case No. 510- 2019-00011X, regarding those issues. On February 15, 2022, the AJ issued a decision in favor of the Agency and concluded that Complainants failed to prove discrimination as alleged. 2022002803, 2022002804, et al. 3 The AJ found that the record demonstrated that the Agency established a bona fide occupational qualification defense because no reasonable alternatives existed to the sex-based scheduling used by the Agency in fiscal year 2018. Finally, the AJ found that the record failed to establish the lone claim of age discrimination. Specifically, the record established that four employees over the age of 60, like the complainant arguing age discrimination, received better treatment than the complainant, which supported a finding that age discrimination did not motivate the Agency’s bid selection decisions. The Agency issued its final order adopting the AJ’s conclusion that Complainants failed to prove discrimination as alleged. The instant appeal followed. 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. Nat’l Labor Relations Bd., 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. An AJ’s credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony, or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD- 110), Ch. 9, at § VI.B. (Aug. 5, 2015). On appeal, Complainants contend that substantial evidence demonstrates that the AJ improperly limited who and when someone could witness a search under the Agency’s search policy. Complainants add that the AJ misstated testimony and the Agency’s search policy regarding pat downs performed for officer safety. Complainants further contend that the AJ erroneously summarized testimony provided by Complainants’ witnesses and misstated the Agency’s policy regarding witnesses to personal searches. Complainants argue that the AJ improperly found that reducing the number of female designated slots was a reasonable alternative to the Agency’s discriminatory policy. Finally, Complainants assert that reasonable alternatives to the sex-based policy already existed at the port, which negated the necessity of sex-based slots on the night shift. Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’ arguments on appeal, we conclude that substantial evidence of record supports the AJ’s determination that Complainants have not proven discrimination by the Agency as alleged. Accordingly, we AFFIRM the Agency’s final order adopting the AJ’s decision. 2022002803, 2022002804, et al. 4 STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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). 2022002803, 2022002804, et al. 5 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 September 26, 2022 Date
