0120160544
05-31-2018
Cary J.,1 Complainant, v. Kirstjen M. Nielsen, Secretary, Department of Homeland Security (Customs and Border Protection), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Cary J.,1
Complainant,
v.
Kirstjen M. Nielsen,
Secretary,
Department of Homeland Security
(Customs and Border Protection),
Agency.
Appeal No. 0120160544
Agency No. HS-CBP-01919-2014
DECISION
On October 28, 2015, 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 28, 2015, final decision concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Seized Property Specialist at the Agency's Fines, Penalties, and Forfeitures Office facility in Tampa, Florida.
On November 5, 2014, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of disability (lower neurological spinal complications related to cervical myelopathy and lumbar disc disease) and reprisal for prior request for reasonable accommodation under Section 501 of the Rehabilitation Act of 1973 when:
1. Beginning in April 2014, a Fines, Penalties, and Forfeiture Officer (Officer, no known disability nor prior protected activity) excluded Complainant from work related discussions and meetings regarding seized property.
2. Beginning in April 2014, the Officer changed Complainant's work assignments which resulted in the assignment of less complicated and more routine menial matters.
3. Between April and September 2014, the Officer did not allow Complainant to enter the vault.
4. In or about June 2014, the Officer did not allow Complainant to travel for a temporary duty assignment to other ports or provide training to other units.
5. On or about August 8, 2014, the Officer yelled at Complainant in a loud manner.
6. On August 25, 2014, the Officer physically assaulted Complainant.
7. From November 2014 through January 2015, Complainant was not notified when the Officer returned to the building which resulted in Complainant having to relocate to an alternative work site.
8. In February 2015, Complainant was not given an opportunity to participate in the Supervisor and Senior Seized Property Specialist training course.
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.
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").
Disparate Treatment
In claim (8), Complainant's only timely claim, he alleged that he was subjected to disparate treatment based on his disability and his prior protected activity. A claim of disparate treatment based on indirect evidence is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to prevail, he or she must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, 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. St. Mary's Honor Ctr. 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. 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. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep't. of Transp., EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep't. of Health and Human Serv., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep't. of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
For the purposes of analysis, we assume Complainant is an individual with a disability. 29 C.F.R. � 1630.2(g)(1). Complainant alleged the Officer took various actions against him. The Officer was Complainant's first line supervisor and the Acting Area Port Director (Director, no known disability, and no know prior protected activity) was his second level supervisor. The Officer averred that she did not have the authority to provide training as alleged in claim (8) noting that she was no longer Complainant's supervisor at that time. The Director was not made aware the training. Complainant has not shown that the Officer or the Director denied him training as he alleged. Therefore, we conclude that Complainant has not shown that he was subjected to disparate treatment in violation to the Rehabilitation Act as alleged in claim (8).
Harassment
In his harassment claim, in addition to claim (8) discussed above, Complainant alleged that the Officer yelled at him in a loud manner, the Officer physically assaulted him and when the Officer returned to the building, Complainant had to relocate to an alternative work site as stated in claims (5), (6), and (7). Complainant also asserted that he was treated differently by the Officer in claims (1), (2), (3), and (4).
To prove his harassment claim, Complainant must establish that he 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, his disability and/or retaliatory animus. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself.
Here, as already concluded above, there is no evidence to support a finding that Complainant's disability or prior protected activity played any role whatsoever in the decisions regarding the training course. In claims (1), (2), (3), and (4), Complainant also asserted that he was excluded from meetings, his work assignments including access to the vault, travel for temporary assignments, and denial of a training course. The responsible management officials provided a legitimate, non-discriminatory explanation for these events. The Officer denied that Complainant was excluded from meetings as he alleged. The Officer noted that the only change to Complainant's assignments was the Agency's form which was used to initiate a seizure. However, the form did not affect Complainant's assignment and any assignment change was based on the operational needs of the Agency. Complainant asserted that he was "banned from the vault." The Officer averred that Complainant was permitted to enter the vault as long as he was accompanied by two armed officers which was protocol for all employees entering the vault. As to the travel to provide training, the Officer indicated that there was no such training as alleged by Complainant.
As to Complainant's claims of additional events raised in claim (5), Complainant has not shown that the Officer yelled at him or assaulted him because of his disability and/or request for a reasonable accommodation. The Officer denied "yelling" at Complainant. She indicated that there was a delay in processing the transfer of seized property that could negatively impact scheduled truck pick-ups. She sought Complainant and found him assisting another employee regarding duties that were not Complainant's duties or relevant to the schedule trucks. A Coworker heard the incident and felt it was unprofessional and unrelated to Complainant's medical condition or protected activity. As for claim (6), Complainant asserted that the Officer assaulted him. She denied that she physically assaulted him or touched him in a violent or aggressive manner. She indicated that she placed her hands on Complainant's shoulders and told him and a coworker that they needed to work on the own assignments. Coworkers provided contradictory statements as to whether the event was "violent" or not. However, there was no indication that the event occurred because of Complainant's medical conditions or his prior EEO activity. Finally, as to claim (7), Complainant indicated that he and management came to an agreement that they would notify him when the Officer entered the workplace. The Director indicated that it was a courtesy to inform Complainant and that there was no obligation for management to do so. Upon review of these events and the evidence in the record, we find that Complainant provided no evidence to support his assertion that the alleged events occurred because of his disability and/or his prior request for a reasonable accommodation.
Taking into consideration of all the events alleged by Complainant, we conclude in sum, that he failed to prove that his disability or retaliatory animus played any role in the incidents he proffered as evidence of his harassment claim.
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 no violation of the Rehabilitation Act.
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. 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. 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
May 31, 2018
__________________
Date
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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