Brandon D.,1 Complainant,v.Kirstjen M. Nielsen, Secretary, Department of Homeland Security (Customs and Border Protection), Agency.

Equal Employment Opportunity Commission

Nov 15, 2018

0120171233 (E.E.O.C. Nov. 15, 2018)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Brandon D.,1
Complainant,

v.

Kirstjen M. Nielsen,
Secretary,
Department of Homeland Security
(Customs and Border Protection),
Agency.

Appeal No. 0120171233

Agency No. HS-CBP-23548-2015

DECISION

On February 15, 2017, 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
January 18, 2017, 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. For the following reasons, the Commission AFFIRMS
the Agency’s final decision.

ISSUES PRESENTED

The issues presented are: (1) whether the Agency properly dismissed nine allegations as untimely
filed pursuant to 29 C.F.R. § 1614.107(a)(2); and (2) whether the preponderance of the evidence
in the record establishes that Complainant was subjected to discrimination based on national origin
and/or reprisal.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Border Patrol Agent,
GS-1896-12, at the Agency’s Ramey Sector Intelligence Unit in Aguadilla, Puerto Rico.

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.
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Complainant’s national origin is Puerto Rican. According to Complainant, he engaged in protected
EEO activity prior to the instant complaint when he opposed discriminatory practices and when
he reported discrimination to organizations such as the Agency’s Office of the Inspector General
and the Agency’s Joint Intake Center (JIC). Complainant’s first-line supervisor was a Supervisory
Border Patrol Agent (S1), his second-line supervisor was a Patrol Agent-in-Charge (S2), his third-
line supervisors were Assistant Chief Patrol Agents (S3A and S3B), his fourth-line supervisor was
the Deputy Chief Patrol Agent (S4), and his fifth-line supervisor was the Chief Patrol Agent (S5).

On April 27, 2015, an off-duty Agency employee observed Complainant driving an unmarked
government vehicle against traffic on a two-lane road at a high rate of speed with the emergency
lights and sirens flashing. According to the employee’s report, two oncoming vehicles had to pull
off the road to avoid Complainant. Complainant stated that he was responding to a maritime
smuggling event and that he acted appropriately. Complainant averred that this employee
fabricated the allegations about cars having to pull off the road to avoid a collision with his vehicle.
On April 29, 2015, S1 issued Complainant a Record of Discussion, which stated that there was no
need for Complainant to respond to the alleged maritime smuggling event with sirens and lights
activated and driving over the speed limit because there was no risk to human life. According to
S1, during this meeting Complainant yelled at her and used repeated profane language. S1 averred
that Complainant was yelling and that he was very aggressive. Complainant stated that he only
raised his voice when S1 would not let him defend himself and that he did not direct his profanity
at any particular individual.

On April 29, 2015, S1 sent S2 a memorandum detailing Complainant’s behavior during their
meeting. The Agency’s JIC investigated S1’s allegations that Complainant acted inappropriately
while meeting with her on April 29, 2015. On May 18, 2015, the JIC issued a report of
investigation, which found that Complainant behaved in an unprofessional manner and used foul
language while talking to S1. The JIC also investigated the allegations that Complainant had
engaged in unsafe driving. On May 28, 2015, the JIC issued an administrative inquiry report, which
found that Complainant drove on the wrong side of the road on April 27, 2015, causing at least
one car to take evasive maneuvers to avoid a collision, in violation of Agency policies.

On June 18, 2015, the Agency instructed Complainant to submit to a Fitness-for-Duty Examination
(FFDE) on June 25, 2015. On July 1, 2015, the Agency instructed Complainant to undergo a
psychological and/or psychiatric FFDE on August 11, 2015. According to S3A, Complainant was
referred for the FFDE because of his unsafe driving on April 27, 2015, and because of his loud,
profanity-laced unprofessional behavior on April 29, 2015. S3A averred that management was
concerned that Complainant’s erratic behavior could escalate. S3A stated that Complainant
successfully completed both portions of the FFDE and that he was returned to full duty.

On August 6, 2015, S3B issued Complainant a proposed five-day suspension for unprofessional
and disrespectful conduct for unsafe driving on April 27, 2015, and for raising his voice and yelling
profanities at S1 on April 29, 2015. On October 2, 2015, S4 issued Complainant a decision to
suspend Complainant for three days from October 5 to 7, 2015, and asked him to turn over his
Agency credentials and his service weapon.
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S4 stated that he found that the charges were sustained but that he decided to reduce the suspension
from five to three days after considering the nature and seriousness of the misconduct in relation
to the duties and responsibilities of his position. On October 8, 2015, Complainant received his
credentials and service weapon upon his return to work.

According to Complainant, in January 2016 he learned that he had been excluded from
participating in a certain operation (Operation 1). S2 stated that Complainant had been the first
Agent to work on Operation 1 and that he subsequently rotated other Agents through the
assignment because they had expressed interest in doing so.

Complainant alleged that in February 2016 he learned that he had not been invited to attend
Systems Exploitation Training, which was offered in Harpers Ferry, West Virginia from March 4
to 18, 2016. S1 stated that she communicated the training opportunity to the Unit but that
Complainant did not respond that he was interested. S1 averred that Complainant was on an offsite
detail at the time she told people about the training. According to S1, the training was subsequently
cancelled due to a funding issue.

Procedural Background

On May 18, 2015, at 12:00 p.m. Complainant received notice of the right to file a formal complaint
by email from the EEO Counselor. According to the read receipt, Complainant opened the email
later that day at 1:59 p.m. On June 3, 2015, Complainant filed an EEO complaint, which he
subsequently amended, alleging that the Agency discriminated against him on the bases of national
origin (Puerto Rican) and reprisal for prior protected EEO activity (opposition to discriminatory
practices) when:

1. Beginning in July 2014, he was denied training opportunities, attendance at
meetings, participation in briefings, and/or detail opportunities;
2. On August 8, 2014, and in October 2014, S2 made disrespectful comments to him;
3. On February 2, 2015, S2 and S3A did not allow him to participate as part of
Operation 1 and referred to him as a “loose cannon”;
4. On March 19, 2015, S1 issued him a Cease and Desist letter;
5. On April 29, 2015, S1 issued him a Record of Discussion;
6. On April 30, 2015, his weapon, badge, and credentials were taken away, he was
placed on administrative duties, and he was reassigned to the Sector
Communications Center by S5;
7. On April 30, 2015, his Administratively Uncontrollable Overtime was decertified
by S2;
8. On April 30, 2015, S2 denied that he had an earlier conversation with Complainant
and informed a coworker that he could not serve as Complainant’s witness;
9. On May 8, 2015, S2 asked Complainant’s coworkers to prepare memoranda
regarding his character and any potentially informative conversations;
10. On August 6, 2015, he received a proposed five-day suspension for unprofessional
and disrespectful conduct;
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11. On August 11, 2015, he was subjected to a psychological and/or psychiatric
examination;
12. On October 2, 2015, he was ordered to relinquish his service-issued weapons and
credentials;
13. On January 27, 2016, he became aware that he was not selected to rotate onto the
Operation 1 assignment; and
14. On February 19, 2016, he became aware that he was not selected to attend the
Systems Exploitation Training in Harpers Ferry, West Virginia from March 4 to
18, 2016.

The Agency dismissed allegations 1 through 9 pursuant to 29 C.F.R. § 1614.107(a)(2) as untimely
filed. According to the Agency, June 3, 2015, was outside of the 15-day time period to file his
complaint that began when he received the notice of the right to file a discrimination complaint on
May 18, 2015.

At the conclusion of the investigation into the accepted claims, the Agency provided Complainant
with a copy of the report of investigation and notice of his right to request a hearing before an
EEOC 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 found that it had properly
dismissed claims 1 through 9 as untimely filed and concluded that Complainant failed to prove
that the Agency subjected him to discrimination as alleged in his remaining claims. The instant
appeal followed.

CONTENTIONS ON APPEAL

On appeal, Complainant contends that management has lied. According to Complainant, he tried
to file his complaint before June 3, 2015, but the EEO Counselor provided him with telephone and
fax numbers that did not work. Complainant argues that he has been denied due process in being
disciplined for his allegedly erratic driving without an opportunity to defend himself. Complainant
alleges that coworkers have engaged in misconduct without being disciplined.

In response to Complainant’s appeal, the Agency contends that Complainant has provided no
evidence that he attempted to file his formal complaint before June 3, 2015. According to the
Agency, Complainant failed to rebut its legitimate, nondiscriminatory reasons for its actions. The
Agency requests that its final decision be affirmed.

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
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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”).

Dismissal of Claims 1 through 9

EEOC Regulation 29 C.F.R. § 1614.107(a)(2) states that the Agency shall dismiss a complaint or
a portion of a complaint that fails to comply with the applicable time limits contained in
§ 1614.105, § 1614.106 and § 1614.204(c), unless the Agency extends the time limits in
accordance with § 1614.604(c). EEOC Regulation 29 C.F.R. § 1614.106(b) states that an
employment discrimination complaint must be filed within 15 days of receipt of notice of the right
to file a complaint. Here, the record contains a fax transmittal sheet indicating that Complainant
received an error message when attempting to send his complaint to the EEO Office by fax on
June 3, 2015. However, June 3, 2015, was more than 15 days after Complainant received notice
of the right to file, and there is no evidence in the record that Complainant attempted to file his
complaint within the 15-day period. Accordingly, we AFFIRM the dismissal of claims 1-9.

Fitness-for-Duty Examination

Employers may require a medical examination or make disability related inquiries of an employee
only if the examination is job-related and consistent with business necessity. See Enforcement
Guidance: Disability-Related Inquiries and Medical Examinations of Employees Under the
Americans with Disabilities Act (ADA) (July 27, 2000) (web version) (Guidance), at 5. This
requirement is met when the employer has a reasonable belief, based on objective evidence, that:
(1) an employee’s ability to perform the essential job functions is impaired by a medical condition;
or (2) that an employee poses a direct threat due to a medical condition. See Guidance at 14.

This means that the employer must have a reasonable belief based on objective evidence that an
employee will be unable to perform the essential functions of his/her job because of a medical
condition. Objective evidence is reliable information, either directly observed or provided by a
credible third party, that an employee may have or has a medical condition that will interfere with
his ability to perform essential job functions or will result in a direct threat. Id., p. 7. Where the
employer forms such a belief, its disability-related inquiries and medical examinations are job-
related and consistent with business necessity, if they seek only the information necessary to
determine whether the employee can perform the essential functions or work without posing a
direct threat to self or others. Id. It is the burden of the employer to show that its disability-related
inquiries and requests for medical examination are job-related and consistent with business
necessity. See Cerge v. Dep’t of Homeland Security, EEOC Appeal No. 0120060363 (Oct. 9,
2007).

Here, the Agency referred Complainant for a FFDE after he was reported for driving erratically
and raising his voice and using repeated profanity when meeting with S1. We find that these reports
constitute objective evidence that Complainant could have a medical condition that would either
interfere with his Border Patrol Agent duties or constitute a direct threat. Therefore, the FFDE was
job-related and consistent with business necessity.
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Disparate Treatment

To prevail in a disparate treatment claim, 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); Holley, supra; Pavelka v. Dep’t
of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995).

Complainant alleged that he was subjected to discrimination when he received a proposed five-
day suspension, which was mitigated to a three-day suspension. The Agency’s legitimate,
nondiscriminatory reasons for proposing Complainant’s suspension and for suspending
Complainant were that JIC reports substantiated allegations that Complainant had engaged in
unsafe driving and that he had raised his voice and used profanity when discussing the alleged
unsafe driving incident with S1. We find that the preponderance of the evidence in the record does
not establish that these legitimate, nondiscriminatory reasons are a pretext designed to mask
discriminatory or retaliatory animus.

Complainant also alleged that he was discriminated against when he was denied the opportunity
to rotate into the Operation 1 assignment. The Agency’s legitimate, nondiscriminatory reason for
not rotating Complainant into the Operation 1 assignment was that Complainant had already had
a turn on the assignment and other Agents wanted to participate. Complainant has failed to
establish by the preponderance of the evidence in the record that the Agency’s proffered reason is
a pretext for discrimination based on national origin or reprisal.

Finally, Complainant alleged that he was subjected to unlawful discrimination when he was denied
the opportunity to participate in Systems Exploitation Training. The Agency’s legitimate,
nondiscriminatory reason for not selecting Complainant for the training opportunity was that
Complainant did not respond to S1 to say that he was interested, possibly because he was on an
offsite detail at the time. The preponderance of the evidence in the record does not establish that
this legitimate, nondiscriminatory reason is pretextual.

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Hostile Work Environment

To establish a claim of harassment a complainant must show that: (1) he belongs to 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 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 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).

In the instant case, there is no evident connection between the alleged harassment and
Complainant’s national origin or his prior protected EEO activity. Therefore, Complainant has
failed to establish that he was subjected to a hostile work environment based on national origin or
reprisal.

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 because the Agency
properly dismissed Complainant’s June 3, 2015, claims as untimely filed and because the
preponderance of the evidence in the record does not establish that discrimination occurred with
respect to the remaining claims.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party shall have
twenty (20) calendar days of receipt of another party’s timely request for reconsideration in
which to submit a brief or statement in opposition.
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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). All requests and arguments must
be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity
Commission. Complainant’s request may be submitted via regular mail to P.O. Box 77960,
Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 agency’s request must be submitted in digital format via the EEOC’s Federal
Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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 (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.

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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

November 15, 2018
Date