[Redacted], Jay C., 1 Complainant,v.Alejandro N. Mayorkas, Secretary, Department of Homeland Security (Customs and Border Protection), Agency.

Equal Employment Opportunity Commission

Mar 2, 2023

Appeal No. 2021004888 (E.E.O.C. Mar. 2, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Jay C.,1 Complainant, v. Alejandro N. Mayorkas, Secretary, Department of Homeland Security (Customs and Border Protection), Agency. Appeal No. 2021004888 Hearing No. 480-2020-00660X Agency No. HS-CBP-01882-2019 DECISION On September 4, 2021, 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 August 4, 2021, 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons, the Commission AFFIRMS the Agency’s final decision. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Customs and Border Protection Officer (CBPO) at the Agency’s San Ysidro Port of Entry in San Ysidro, California. On October 23, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (Asian), national origin (Filipino), color (Brown), 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. 2021004888 2 age (YOB: 1954), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act of 1967 when: 1. Beginning May 31, 2018 and continuing, Complainant was subjected to harassment as evidenced by the following: a. On May 31, 2018, the Branch Chief refused to rescind a Memorandum of Counseling regarding Treasury Enforcement Communication System (TECS) that Complainant received; b. From February 2019 to June 2019, the Branch Chief was aware that the Supervisory CBP Officer (SCBPO-1) bullied and harassed Complainant yet took no corrective actions; c. On April 17, 2019, SCBPO-1 verbally reprimanded Complainant for missing a morning training class; d. In June 2019, SCBPO-1 showed a knife to Complainant and another CBPO (CBPO-2) and informed them that he brings his knife collection to work in his backpack; e. On June 3, 2019, SCBPO-1 reprimanded Complainant by email regarding his Treasury Enforcement Communication System (TECS) access expiring f. On June 19, 2019, SCBPO-1 changed Complainant’s schedule from 2:00 p.m. to 1:00 p.m. to 9:00 p.m. in order to celebrate the Chief’s birthday, and solicited $20 from him for the birthday party; g. On or around August 16, 2019, SCBPO-1 and another SCBPO (SCBPO-2) informed Complainant’s coworkers that he would be reassigned and leaving the Intelligence Targeting Unit effective September 1, 2019, although Complainant was not reassigned at that time; h. On or around August 16, 2019, SCBPO-1 and SCBPO-2 informed Complainant that his request for leave during the month of September 2019 would not be approved; however, after Complainant questioned them about the matter, his leave was ultimately approved; 2. Effective March 8, 2020, Complainant was removed from his detail in the Intelligence Targeting Unit (ITU).2 The Branch Chief stated that she requested that Complainant by issued the Memorandum of Counseling after he was twice instructed not to put the terms “E/O if not in vehicle” on a TECS record as it creates a violation and Complainant continued not to comply. See Report of 2 The Agency dismissed two claims, specifically that on December 23, 2018, Complainant learned he had not received a year-end monetary award and that on April 21, 2019, the SCBPO-1 charged Complainant with 1.5 hours of Leave Without Pay for untimely counselor contact. See Report of Investigation (ROI) at 150-57. The Agency also dismissed three claims alleging that the SCBPO-1 was unprofessional in speaking ill about three coworkers for failure to state a claim as Complainant did not show that he was aggrieved by comments made about other employees. See ROI at 150-57. 2021004888 3 Investigation (ROI) at 205.3 The Intelligence Division Chief (CID Chief) explained that Complainant requested CBPOs to “exempt” travelers on primary which had illegal activity links/ties or which he targeted for illegal activity, which was essentially asking CBPOs to violate TECS policy and he approved the issuance of the Memorandum of Counseling due to Complainant’s failure to follow instructions even after being asked twice to do so. See ROI at 259. The SCBPO-1 explained that the TECS system sends automated periodic reminders when a user is required to recertify in order to maintain their access from 30 days prior to the due date of recertification. See ROI at 223-24. The SCBPO-1 stated that he received an automated email from the TECS system informing him that Complainant had lost his access and he sent Complainant an email counseling him on the loss of access and reminding Complainant that he was required to maintain TECS access. See ROI at 223-24. The SCBPO-1 explained that the ITU had a tradition of organizing “potlucks” or obtaining catering for the group for certain situations and that such events are announced as optional participation. See ROI at 224. The SCBPO-1 stated that he told the ITU employees that the potluck would be held at 1:00 p.m. and that the 2:00 p.m. shift was told they could come in an hour early in order to participate. See ROI at 224. He further explained that each employee was asked to donate $10 if they wished to and that CBPO-1 gave him $20 to pay for both himself and Complainant after Complainant verbally told him that he wished to participate. See ROI at 224. The CID Chief stated that he removed Complainant from his detail due to Complainant’s failure to perform his basic duties as a ITU officer, explaining that the Watch Commander specifically asked contacted Complainant to request assistance on a particular case and requested an expeditious response but Complainant failed to perform the task and also delegated the task to other members of the Tactical Terrorism Response Team. See ROI at 260. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an Equal Employment Opportunity Commission 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 found that Complainant did not establish a prima facie case because there was no evidence that other employees who were not members of his protected classes were treated differently but even so, that the Agency articulated legitimate, nondiscriminatory reasons for its actions and Complainant did not submit any evidence of discriminatory animus. 3 We note that the investigator gave Complainant two weeks to submit his affidavit and Complainant responded by requesting two weeks of administrative or sick leave to complete his affidavit. See ROI at 198. On September 28, 2020, the day before Complainant’s affidavit was originally due, the investigator provided Complainant an extension to complete his affidavit and Complainant was advised that he was approved for 16 hours of administrative leave for September 23-24, 2020. See ROI at 198. Complainant did not submit an affidavit. 2021004888 4 The decision further found that Complainant did not establish that any of the alleged incidents of harassment were due to his protected classes. The decision therefore concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. Complainant appealed. On appeal, Complainant contends that the investigation was inadequate and requests that his case be referred to an AJ for additional investigation, as well as contending that the Agency’s reasons are untrue. In response, the Agency contends that Complainant was given adequate time to submit his affidavit but failed to do so and also failed to submit any evidence supporting his assertions of discriminatory animus.4 ANALYSIS AND FINDINGS 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”). Adequacy of the Investigation As an initial matter, we will briefly address Complainant’s challenge to the adequacy of the investigation. Investigations of discrimination complaints are governed by 29 C.F.R. § 1614.108 and the instructions contained in the Commission's EEO MD-110. See EEO MD-110, Chap. 6 (“Development of Impartial and Appropriate Factual Records”). An adequate agency investigation is one that is developed impartially and contains an appropriate factual record. 29 C.F.R. § 1614.108(b). “An appropriate factual record is one that allows a reasonable fact finder to draw conclusions as to whether discrimination occurred.” 29 C.F.R. § 1614.108(b); EEO MD- 110, Chap. 6, § § I, IV.B., IV.C. 4 As an initial matter, we accept the Agency’s brief, filed on January 27, 2022, as timely. The Commission’s regulations provide that “any statement or brief in opposition to an appeal must be submitted to the Commission ... within 30 days of receipt of the statement or brief supporting the appeal, or, if no statement or brief supporting the appeal is filed, within 60 days of receipt of the appeal.” 29 C.F.R. §1614.403(f). The Agency contends that it did not receive notice of the appeal or a copy of Complainant’s brief in support of his appeal until December 29, 2021 and therefore, its brief is timely as it was submitted within 30 days of receipt of Complainant’s brief, submitting in support an affidavit from its attorney attesting to the Agency’s date of notice of the appeal. We accept the Agency’s brief as timely. 2021004888 5 An investigator must be unbiased, objective and thorough. Id. at § V.C. The investigator must obtain all relevant evidence from all sources regardless of how it may affect the outcome. Id. at § V.D. Complainant’s main challenge to the investigation is his assertion that the Agency did not give him adequate time to submit his own statement of events and did not permit him adequate discovery. We reject Complainant’s argument. The record indicates that the investigator initially provided Complainant two weeks to submit his affidavit and then later gave Complainant an extension of another week. See ROI at 198. Complainant was also afforded two days of administrative leave in order to submit his affidavit. See ROI at 198. Complainant has not provided any explanation for why he was unable to submit his affidavit in that time. In addition, we note that to the extent Complainant is challenging the lack of time for additional discovery, we note that a hearing is a continuation of the fact-finding process and Complainant withdrew his request for a hearing. Complainant cannot now request a hearing before an AJ merely because he is dissatisfied with the Agency’s decision. Untimely Counselor Contact We will also briefly address the Agency’s dismissal of two claims, the first regarding Complainant’s not receiving a year-end monetary award and the SCBPO charging Complainant with 1.5 hours of Leave Without Pay on April 21, 2019. 29 C.F.R. § 1614.105(a)(1) provides that an aggrieved person must initiate contact with an EEO Counselor within 45 days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within 45 days of the effective date of the action. In this case, Complainant contacted an EEO counselor on July 14, 2019, more than six months after Complainant learned that he did not receive a year-end monetary award in December 2018, and almost three months after he was charged Leave Without Pay in April 2019. Complainant has not provided any justification to delay or toll the time limit with respect to these claims and therefore, we find that the Agency properly dismissed these claims pursuant to 29 C.F.R. §1614.107(a)(2) for untimely counselor contact. Failure to State a Claim The regulation set forth at 29 C.F.R. § 1614.107(a)(1) provides, in relevant part, that an agency shall dismiss a complaint that fails to state a claim. An 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). In this case, Complainant alleged that the SCBPO-1 was unprofessional and made negative comments about other employees which caused him stress. 2021004888 6 Complainant does not state that any of the comments were about him nor does Complainant allege that he has suffered any present harm or loss with respect to a term or condition of his employment and therefore, we find that the Agency properly dismissed these claims for failure to state a claim. See Shaun N. v. Dep’t of Defense, EEOC Appeal No. 2022004940 (Dec. 7, 2022). Disparate Treatment To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). He must generally establish a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with in this case, however, since the Agency has articulated legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep’t of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency’s explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000); St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Pavelka v. Dep’t of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995). Here, we find that, even assuming arguendo that Complainant could establish a prima facie case, the Agency articulated legitimate, nondiscriminatory reasons for its actions. The Branch Chief stated that Complainant was issued a Memorandum of Counseling for his failure to follow supervisory instructions. See ROI at 205. The SCBPO-1 stated that Complainant was scheduled to attend a training being put on at another port on April 16, 2019, but Complainant arrived late and did not inform his supervisor or anyone that he would be late or unable to attend. See ROI at 220. The SCBPO-1 stated that Complainant told him that he was on sick leave the day before and forgot that he had a training scheduled for that day, which was not a legitimate reason for reporting to work at the wrong time and place. See ROI at 220-21. The SCBPO-1 further explained that he did not pursue any disciplinary action with respect to Complainant’s loss of TECS access but only explained to Complainant that he was expected to maintain TECS access. See ROI at 224. The SCBPO-1 explained that Complainant applied for another position within the Agency that would entail a lateral move from his current position of ITU Officer without the SCBPO-1’s knowledge but that a few days before Complainant was due to start his new position, Complainant requested that upper management allow him to retain his current position of ITU Officer and decline the new position. See ROI at 226. The CID Chief stated that Complainant was removed from ITU after Complainant was verbally counseled for multiple instances of misconduct, including tardiness, loss of TECS access, failure to attend training, and failure to do his duties as tasked. See ROI at 260. He further explained that these instances of misconduct essentially showed that Complainant could not complete his basic duties as an ITU Officer and Complainant was afforded a week to transition out of the unit and select any shift and any day off combination he desired. See ROI at 260. 2021004888 7 Complainant did not submit any evidence of discriminatory animus. While it is clear that Complainant disagrees with the Agency’s actions, disagreement with an Agency’s actions is not sufficient to establish that the Agency’s actions were a pretext for discrimination. See Leif S. v. Dep’t of the Treasury, EEOC Appeal No. 2021004037 (April 28, 2022). Moreover, we note that Title VII does not immunize an employee from the consequences of inappropriate behavior. See Barry v. Dep’t of the Navy, EEOC Appeal No. 0120113682 (Sept. 19, 2013). Hostile Work Environment To establish a claim of hostile environment harassment, Complainant must show that: (1) he is a member of a statutorily protected class; (2) he was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on the 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); see also Flowers v. Southern Reg’l Physician Serv. Inc., 247 F.3d 229 (5th Cir. 2001); Fox v. General Motors Corp., 247 F.3d 169 (4th Cir. 2001); Humphrey v. U.S. Postal Serv., EEOC Appeal No. 01965238 (Oct. 16, 1998). We emphasize that there is no evidence in the record indicating that any of the alleged incidents of harassment were due to any of Complainant’s protected classes. The SCBPO-1 stated that the incident where he showed Complainant his knife took place in the context of CBPO-2 making conversation about if the SCBPO-1 collected anything and he answered that he collected knives and Complainant himself was the one who stood up and approached them and asked to see the SCBPO-1’s knife, whereupon Complainant commented that it was very nice and handed the knife back. See ROI at 222. CBPO-2 confirmed that he asked the SCBPO-1 if he collected anything and asked to see his knife. See ROI at 307. There is no evidence supporting Complainant’s assertion that the SCBPO-1 showing Complainant his knife was at all threatening since the evidence indicates Complainant was only shown the knife at his own request. Finally, the evidence in the record indicates that all of the alleged incidents of harassment amount to routine workplace occurrences such as work assignments, instructions, and admonishments which the Commission has repeatedly stated do not rise to the level of severe or pervasive conduct to constitute a hostile work environment. See Marcie la P. v. Dep’t of Veterans Affairs, EEOC Appeal No. 0120141945 (Oct. 21, 2016); see also Carver v. U.S. Postal Serv., EEOC Appeal No. 01980522 (Feb. 18, 2000) (A supervisor questioning an employee with respect to their duties, even if done in a confrontational manner, is a “common workplace occurrence” and generally does not constitute harassment). CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency’s final decision finding that Complainant did not establish that he was subjected to discrimination as alleged. 2021004888 8 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). 2021004888 9 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 March 2, 2023 Date