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

Equal Employment Opportunity Commission

Feb 14, 2022

Appeal No. 2021001264 (E.E.O.C. Feb. 14, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Rosamaria F.,1 Complainant, v. Alejandro N. Mayorkas, Secretary, Department of Homeland Security (Customs and Border Protection), Agency. Appeal No. 2021001264 Hearing No. 451-2019-00242X Agency No. HS-CBP-00179-2019 DECISION Complainant filed a timely appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s November 17, 2020 final order concerning an equal employment opportunity (EEO) complaint claiming 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. During the relevant time, Complainant was employed by the Agency as a Seized Property Specialist, GS-1801-11, at the Agency’s Port of Laredo and Del Rio Port of Entry in Del Rio, Texas. On February 19, 2019, Complainant filed a formal EEO complaint alleging discrimination by the Agency based on race (Hispanic), sex (female), disability, age (over 40), and in reprisal for protected EEO activity (prior opposition and participation) when: 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. 2021001264 2 1. Beginning around June 2015, Complainant has been subjected to harassment as evidenced by the following claims: a. From June 2015 to present, the Assistant Port Director showed special preferential treatment toward CBP Officer by allowing her to work in the training room, to participate in Port functions and temporary duty assignments, and allowing her to enter his office at will, while Complainant was not given the same opportunities. b. Since about March 1, 2018, after Complainant requested to receive the Port’s email bulletins regarding safety issues and narcotics seizures, the Acting Port Director and Assistant Port Director have excluded Complainant from the recipient list. c. On April 24, 2018, the Supervisory Seized Property did not respond to Complainant’s request for furniture for her office. d. On April 24, 2018, Supervisory CBP attempted to glean information from Complainant about her participation in an administrative investigation regarding the alleged inappropriate relationship of Assistant Post by stating “I heard you were in there for a long time.” e. On July 13, 2018 and August 30, 2018, the Assistant Port Director informed Complainant in a smug manner, she would be relocated from her office to a different office or a cubicle approximately six feet away from the Assistant Port Director’s office. f. On July 24, 2018, the Supervisory Seized Property Specialist and Chief did not acknowledge Complainant’s email notice that she was having surgery. g. On August 24, 2018, the Supervisory Seized Property Specialist, Chief Supervisory Seized Property, and Fines Penalties and Forfeitures Officer visited Complainant’s work site, but did not include her in the discussions regarding her office/cubicle assignment or expectations regarding her performance and duties while on light duty. h. On August 30, 2018, the Assistant Port Director attempted to change Complainant’s duty hours, and began scrutinizing Complainant’s attendance. i. On September 4, 2018, a named CBP Officer walked by Complainant’s office and looked at her in a smirking and smug manner. j. On September 12, 2018, the Supervisory Seized Property Specialist did not respond to Complainant about her inoperable office equipment. k. On September 12, 2018, the Supervisory CBP Officer commented she would no longer be assisting Complainant in storing any seized property, and after Complainant 2021001264 3 relayed this information to Supervisory Seized Property Specialist, Supervisory CBP Officer denied making the comment. l. Effective September 24, 2018, Chief Supervisory Seized Property ordered Complainant to check in/out with Assistant Post Director when she enters or leaves the building. m. On September 24, 2018, Chief Supervisory Seized Property commented via email that he recommended Complainant review and gauge her present work environment with her position description regarding Physical Demands and Work Environment, which Complainant perceived as threatening. n. Beginning October 2, 2018 and continuing for approximately one week, the Assistant Port Director stopped acknowledging or speaking to Complainant. o. On October 9, 2018, prior Acting Port Director [MP] commented to CBP Technician that she was going to love working in his office when he retired because it will be quiet and interruption-free, which Complainant believes was inappropriate and in reference to her request for an office. p. Since October 11, 2018, the Assistant Port Director has not responded to Complainant’s request to return to her assignment to the export lot. q. On October 15, 2018, the Acting Port Director commented to CBP Technician that he was going to file a grievance because a named fast food restaurant did not have any salads, which Complainant believes was inappropriate and in reference to her recent EEO complaint. r. On November 1, 2018, the Assistant Port Director stared at Complainant while she was conversing with the Acting Port Director and a named male CBP Officer. 2. Since September 12, 2018, the Associate Port Director has assigned Complainant to perform receptionist/clerical duties. After its investigation, the Agency provided Complainant with a copy of the report of investigation and notice of right to request a hearing before an Equal Employment Opportunity Commission (EEOC or Commission) Administrative Judge (AJ). Complainant timely requested a hearing. The Agency submitted a motion for a decision without a hearing. The AJ subsequently issued a decision by summary judgment in favor of the Agency. The Agency issued its final order adopting the AJ’s finding that Complainant failed to prove discrimination as alleged. The instant appeal followed. The Commission's regulations allow an AJ to grant summary judgment when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). 2021001264 4 An issue of fact is “genuine” if the evidence is such that a reasonable fact finder could find in favor of the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is “material” if it has the potential to affect the outcome of the case. In rendering this appellate decision, we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a)(stating that a “decision on an appeal from an Agency’s final action shall be based on a de novo review…”); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO-MD-110), at Chap. 9, § VI.B. (as revised, August 5, 2015)(providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). In order to successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence and must further establish that such facts are material under applicable law. Such a dispute would indicate that a hearing is necessary to produce evidence to support a finding that the agency was motivated by discriminatory animus. Here, however, Complainant has failed to establish such a dispute. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in Complainant’s favor. To prove her harassment claim, Complainant must establish that she was subjected to conduct that was either so severe or so pervasive that a “reasonable person” in Complainant’s position would have found the conduct to be hostile or abusive. Complainant must also prove that the conduct was taken because of a protected basis - in this case, her race, sex, age, disability or prior protected activity. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982); Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). See also, Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 (March 8, 1994). The image which emerges from considering the totality of the record is that there were conflicts and tensions with several Agency officials that left Complainant feeling aggrieved. However, the statutes under the Commission's jurisdiction do not protect an employee against adverse treatment due simply to a manager's personality quirks or autocratic attitude. See Bouche v. U.S. Postal Serv., EEOC Appeal No. 01990799 (Mar. 13, 2002). See also Jackson v. City of Killeen, 654 F.2d 1181, 1186 (5th Cir. 1981) (“Title VII is not a shield against harsh treatment at the workplace; it protects only in instances of harshness disparately distributed. The essence of the action is, of course discrimination.”). Discrimination statutes prohibit only harassing behavior that is directed at an employee because of his or her protected bases. Here, the preponderance of the evidence fully supports the AJ’s conclusion that Complainant did not establish that the identified Agency officials were motivated by discriminatory or retaliatory animus. Complainant’s claim of harassment is precluded based on this finding that she failed to establish that any of the actions taken by the Agency were motivated by her protected bases. See Oakley v. U.S. Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000). 2021001264 5 Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’ arguments on appeal, we conclude that the AJ correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated against by the Agency as alleged. Accordingly, we AFFIRM the Agency’s final order adopting the AJ’s decision. 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. 2021001264 6 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. 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 February 14, 2022 Date