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

Equal Employment Opportunity Commission

Mar 30, 2023

Appeal No. 2022000157 (E.E.O.C. Mar. 30, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Michael S.,1 Complainant, v. Alejandro N. Mayorkas, Secretary, Department of Homeland Security (Customs and Border Protection), Agency. Appeal No. 2022000157 Agency No. HS-CBP-01514-2020 DECISION On October 14, 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 September 21, 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 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 an Intelligence Research Specialist, GS-0132-13 at the Agency’s Southeast Caribbean Field Intelligence Group (SEC-FIG) in Miami, Florida. On June 23, 2020, Complainant filed an EEO complaint, which he amended on September 23, 2020. Complainant alleged that the Agency discriminated against him on the bases of 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. 2022000157 2 race/national origin (Hispanic), color (brown), disability (mental), age (50), and in reprisal for prior protected EEO activity2 under Title VII of the Civil Rights Act of 1964 when: 1. From approximately March 2017 through May 2020, work was unequally distributed between the Analysis and Production team and the Collections team. Specifically, on December 5, 2019, Complainant wrote 98 percent of a Terrorism Threat Assessment that was supposed to be an “office” assessment and on April 7, 2020, Complainant was singled out for preparing a report and felt like the “fall guy.” 2. From approximately January 2020 through May 2020, non-supervisors have been given the title of Section Chief and delegated supervisory duties, and as a result, Complainant was being made to report to his peers. 3. On July 13, 2020, the Assistant Chief Patrol Agent (ACPA) attempted to discourage Complainant from filing an EEO complaint, and was unprofessional, disrespectful, and acted in a threatening and intimidating manner toward Complainant. 4. On July 16, 2020, the Program Manager (PM) issued Complainant a Memorandum of Instruction (MOI) for Failure to Follow Instructions by the Southeast Caribbean Field Intelligence Group regarding professional appearance and Unprofessional Behavior toward management. Complainant did not challenge the framing of the complaint. 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). 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 him to discrimination as alleged. Agency employees relevant to this claim include the following: the Acting Branch Chief beginning December 2018, who was Complainant’s first-line supervisor (Supervisor-1); the Assistant Chief Patrol Agent, who was the Acting Field Director and Complainant’s second-line supervisor from July 5 through November 8, 2020 (Supervisor-2); the Division Director, a position in Agency Headquarters (HQ), who was a previous supervisor to Complainant (Division Director); an Intelligence Research Specialist who held the role of team lead for the Analysis and Production team in SEC-FIG during part of the relevant period (Team Lead-A); an Intelligence Research Specialist who held the role of team lead for the Collections team in SEC-FIG (Team Lead-B); and an Intelligence Research Specialist who was the second member of the Analysis and Production Team with Complainant (Coworker-1). Regarding claim 1, Complainant explained that the unequal distribution referred to the Analysis and Production team being expected to do “ALL the analysis and PRODUCTION” for the entire group while the Collections team “ONLY collects intelligence.” Complainant stated that the Analysis and Production team is expected to do it all when it comes to group assessments or big reports. 2 The prior protected activity refers to the present complaint. 2022000157 3 Complainant reported that Analysis and Production is required to produce annual assessments, intelligence reports, and intelligence alerts. Complainant stated that Collections is only required to produce power points, charts, or graphs. Complainant estimated that such projects take a few hours or days, while the reports and assessments assigned to the Analysis and Production team can take months to write. Regarding the December 5 Terrorism Threat Assessment, Complainant stated that he wrote the entire assessment and he had to find 100 percent of all his sources, which Collections was supposed to do. Regarding April 7, Complainant completed a nine-page document in contribution to a Caribbean Assessment. Complainant reported that Team Lead-A sent an email to Complainant and employees that singled Complainant out to conduct further research on the assessment. Complainant reported feeling like he was made to be the “fall guy.” Complainant defined “fall guy” as the person assigned responsibility to write entire assessment reports by himself. Supervisor-1 explained that HQ assigns SEC-FIG a task that is then divided among the office where usually one analyst would be the lead and others would assist. Supervisor-1 denied that there was an unequal distribution. Supervisor-1 stated that everyone had their specific duties to complete and that tasks are equally distributed to the team. Regarding the December 5 Terrorism Threat Assessment, Supervisor-1 explained that Complainant’s portion was only a part of the assessment. Supervisor-1 noted that there was also an Illicit Migration Threat Assessment being completed at the same time. Supervisor-1 explained that Complainant gathered information in the Florida region, another analyst gathered information from New Orleans, and another from Puerto Rico. Supervisor-1 noted that he compiled all the foregoing information and completed the final document. Regarding the events of April 7, Supervisor-1 explained that Complainant had failed to follow simple instructions. Specifically, Complainant had not been instructed to draft a report. Regarding claim 2, we note that team lead and section chief refer to the same role and are used interchangeably by the parties. Complainant said, “I still feel Team Lead-A is given way too much authority in products and production. It’s not just some minor typos-it’s repeated massive rewrites of products and product assignments-yet he is still not a supervisor.” Complainant reported that Team Lead-A repeatedly denied Complainant’s annual leave requests3 while giving a demeaning derogatory speech about why Complainant could not take leave, as an example of abuse of authority. Division Director explained that a team lead is appointed through a competitive process available to all interested employees and that Complainant did not apply for the role. Division Director reported that team leads oversee day-to-day operations for their assigned team but that all supervisory functions were maintained by the Field Director and the Branch Chief. 3 Complainant has not alleged he was discriminatorily denied leave as a discrete claim of discrimination. We note that Complainant did not provide any specific dates of denied leave. 2022000157 4 The record supports that Division Director appointed Team Lead-A4 and Team Lead-B in 2017. Team Lead-A noted that the team lead/section chief was responsible for overseeing the production and dissemination of intelligence products-ensuring that they meet the analytical standards in accordance with Agency policy. Regarding claim 3, Complainant stated that Supervisor-2 described his experiences related to EEO claims and the success rates of claims against him. Complainant reported that Supervisor-2 provided Complainant with this information in an attempt to convince Complainant not to file an EEO claim. Complainant stated that Supervisor-2 tried to discourage Complainant from including the Agency Headquarters in his complaint. Complainant described Supervisor-2 becoming very rude, threatening, and demeaning. Complainant stated that Supervisor-2 raised his voice multiple times. Complainant described Supervisor-2 as interrupting Complainant after Supervisor-2 had accused Complainant of interrupting him. Complainant called the meeting the “most disrespectful, intimidating, and threatening meeting I have ever had-like I said [Supervisor-2] became a vicious unhinged attack dog.” Supervisor-2 explained that the meeting was called to discuss Complainant having sent an email to Division Director on July 8, 2020. Supervisor-2 and Supervisor-1 characterized the email as using hostile and aggressive language. Supervisor-2 noted that Division Director was well outside Complainant’s SEC-FIG chain of command and that Agency policy does not afford non- bargaining employees the right to address the concerns raised in the email directly with executive leadership. Supervisor-2 described Complainant becoming aggressive and agitated during the meeting and that Complainant repeatedly talked over him. Supervisor-2 denied raising his voice above a conversational tone, moving away from behind his desk, or making any threatening gestures with hands or face. Supervisor-2 stated that Complainant brought up having filed grievances against Agency leadership. Supervisor-2 reported informing Complainant that he knew nothing about these claims and that he was here as the Field Director to discuss Complainant’s email to Division Director. Supervisor-2 stated that as he tried to conclude the meeting, he explained to Complainant that Complainant was free to pursue any type of formal grievance against him, but that such grievances would not prevent SEC-FIG management from working with Complainant to ensure that Complainant’s performance, professional bearing, and conduct were within Agency policy. Complainant’s email to Division Director from July 8, 2020, included the following, in part: yes I understand the issue about me purchasing a home and no obligation by the FIG to accommodate my request to locate to another location just because I purchased a home. 4 Team Lead-A had a temporary duty in Mexico City from November 2018 through January 2020. Upon his return, he resumed the role of team lead upon the request of the Field Director and Branch Chief. 2022000157 5 My biggest issue however- is the fact that my strong desire to be assigned to another group- outside of the main FIG location- was and has always been strong even before I purchased a home- that is what is still a key sticking point to me. It’s not at all a brand new issue, a very recent issue or desire that just recently came up because the FIG is moving to Doral. Like always- I was again automatically fully expected to just follow along where the Director or other Supervisors are? Sitting next to the Director and a Supervisor(s) doesn’t grow any liaison(s)- never has, never will, and never would. For whatever reasons- completely unexplainable to me- I was never found to be eligible to be assigned anywhere but the main SECFIG office from the first day I started with the FIG?? where the Director and other Supervisors are. … I had even expressed a desire to work at the AMO in homestead (before I purchased a home) - and even that got rejected? . I had requested to work at the . . . downtown Miami (even before [Coworker-1] was hired and where he is assigned now ) and that was rejected??? [bold text, punctuation, and spacing contained in original] Regarding claim 4, Complainant disagreed with the two charges provided in the MOI. Complainant stated that unintentionally having crumbs on his pants or having a used hem does not mean Complainant had an unprofessional appearance. Complainant stated that his behavior was not unprofessional towards management. Complainant stated that he could not follow the chain of command because it was a “fraudulent, unlawful scam.” Complainant characterized the chain of command this way because he believes his concerns never reached officials higher up the chain. Supervisor-2 explained that the MOI was issued for the charges of failing to follow instructions related to unprofessional appearance and unprofessional behavior. Supervisor-2 noted that he personally observed Complainant’s improper workplace behavior, “very dirty clothing, and [pants that are] unhemmed and frayed” during the July 13 meeting. Supervisor-2 noted that current SEG-FIG supervisors concurred that these were longstanding issues. Supervisor-1 explained that Complainant’s pants are unhemmed and stained and that Complainant’s sweaters have holes and are tattered. Supervisor-1 cited to Complainant’s July 8, 2020 email to Division Director as an example of Complainant’s unprofessional behavior and this was referenced in the MOI. 2022000157 6 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”). Unlawful Interference with the EEO process Comments that, on their face, discourage an employee from participating in the EEO process violate the letter and spirit of the EEOC regulations and can establish what is sometimes referred to as a “per se” violation of the law. See Complainant v. Dep't of Defense, EEOC Appeal No. 0120132212 (Nov. 8, 2013). Regarding claim 3, we find that Complainant failed to produce any persuasive evidence that Supervisor-2 made comments that would discourage an employee from participating in the EEO process. Complainant did not provide any specific statements made by Supervisor-2 but rather relied on generalities that Supervisor-2 denied. Furthermore, Supervisor- 1 stated he was in the office during the conversation at issue in claim 3, and he contradicted Complainant’s claim. Disparate Treatment and Harassment 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). Complainant must initially establish a prima facie case by demonstrating that he or she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Construction Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 804 n. 14. The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993). This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. 2022000157 7 Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency's actions were motivated by discrimination. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Complainant v. Dep’t of Transportation, EEOC Request No. 05900159 (June 28, 1990); Complainant v. Dep’t of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Complainant v. Dep’t of the Navy, EEOC Petition No. 03900056 (May 31, 1990). Complainant must prove that the employer’s reasons are not only pretext but are pretext for discrimination. St. Mary's Honor Center v. Hicks, 509 U.S. 502, 507 and 516 (1993). A factual issue of pretext cannot be established merely on personal speculation that there was discriminatory intent. Complainant v. U.S. Postal Service, EEOC Appeal No. 01A11110 (May 22, 2002); Springer v. Durflinger, 518 F.3d 479, 484 (7th Cir. 2008). Pretext means that the reason offered by management is factually baseless, is not the actual motivation for the action, or is insufficient to motivate the action. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 120 S. Ct. 2097 (2000). To establish a claim of harassment, a complainant must establish that: (1) she or he belongs to a statutorily protected class: (2) she or 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 her or his 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. 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). For purposes of analysis, we assume arguendo that Complainant has established a prima facie case of discrimination on the alleged basis. We find that the Agency has articulated legitimate, nondiscriminatory reasons for the personnel actions/incidents at issue. Regarding claim 1, Supervisor-1 explained that everyone had their specific duties and that tasks are equally distributed among the team. Supervisor-1 addressed the specific examples contained in claim 1 as well, noting that Complainant’s work was either part of a larger project or improperly performed due to Complainant’s failure to follow instructions. Regarding claim 2, Division Director explained that a team lead is appointed through a competitive process available to all interested employees and that Complainant did not apply for the role. 2022000157 8 Division Director noted that all supervisory functions were maintained by the Field Director and Branch Chief, while team leads oversee day-to-day operations for their assigned team. Regarding claim 4, the MOI was issued due to Complainant’s unprofessional behavior and Complainant’s failure to follow instructions regarding professional appearance. We find Complainant failed to show that the Agency’s articulated reasons for the discrete adverse employment actions were a mere pretext for discrimination. For example, regarding the April 7 issue from claim 1, the relevant emails support that Complainant failed to follow instructions. The initial assignment email from the Field Director instructed the team to pull data for a specific period and save it in a specific location. The email clarifies that this data pull had to be completed before any threat assessment report was drafted. Team Lead-A’s April 7 email acted as a reminder of what task Complainant needed to perform and did not assign Complainant any drafting. Furthermore, Team Lead-A’s email noted that Coworker-1 was the lead on the threat assessment, not Complainant, which is in contrast to Complainant’s contention that he was the “fall guy.” Regarding claim 4, Complainant admits that at least one of his pants is unhemmed and that his clothes occasionally have crumbs on them. Furthermore, Complainant’s July 8 email sent to Division Director contains the repeated question marks and bolding referenced by Supervisor-1 and Supervisor-2, as well as the irregular capitalization of an entire word. We find that Complainant failed to prove that the conduct complained of across the four claims was based on Complainant’s membership in a statutorily protected class. Furthermore, the record does not contain evidence that similarly situated employees not in Complainant’s protected groups were treated differently under similar circumstances. The record does not contain evidence of discriminatory animus. CONCLUSION Accordingly, the Agency’s final order finding no discrimination is AFFIRMED. 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. 2022000157 9 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). 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. 2022000157 10 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 30, 2023 Date