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

Equal Employment Opportunity Commission

Dec 20, 2018

0120172599 (E.E.O.C. Dec. 20, 2018)

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

Dougie F.,1
Complainant,

v.

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

Appeal No. 0120172599

Hearing Nos. 480-2015-00205X & 480-2016-00940X

Agency Nos. HS-CBP-01282-2014 & HS-CBP-25425-2016

DECISION

On July 20, 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
July 27, 2017 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.

BACKGROUND

During the period at issue, Complainant worked as a GS-11, Seized Property Specialist (SPS), at
the Agency’s Otay Mesa Port of Entry in San Diego, California.

On February 26, 2016, Complainant filed a formal EEO complaint. Complainant claimed that the
Agency discriminated against him based on race (Caucasian) and in reprisal for prior protected
EEO activity when:

1. On May 1, 2014, Complainant was issued a Cease and Desist Letter for alleged
misconduct, and he was reassigned to Fines, Penalties and Forfeitures (FP&F) pending
a management inquiry into the matter.

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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2. On December 15, 2015, Complainant learned that he was not recommended for a Joint
Award Committee Superior Achievement Award for calendar year 2015.

3. On February 29, 2016, Complainant learned that his request to participate in a
Temporary Duty assignment to the Port of Philadelphia was denied.

After an investigation, 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).
Complainant timely requested a hearing. On January 23, 2015, the AJ issued an
Acknowledgement and Order instructing the parties to file any motions to amend as soon as
possible. The AJ warned the parties that motions to amend filed late in the process may be denied.
On November 30, 2015, Complainant moved to amend the instant formal complaint. On May 12,
2017, the Agency moved for a decision without a hearing. On May 30, 2017, the AJ granted the
Agency’s motion for a decision without a hearing. The AJ’s decision also denied Complainant’s
motion to amend the formal complaint. The Agency subsequently issued a final order adopting
the AJ’s finding no discrimination.

The instant appeal followed. On appeal, Complainant asserts that, when he and coworker engaged
in a 2014 verbal altercation, management took no action against the Hispanic SPS, whereas it
reassigned and issued a no-contact letter to Complainant.

Complainant also accused the port director of fabricating pretextual statements to mask retaliation
for Complainant’s 2010 EEO complaint against her.

According to Complainant, the Agency further subjected him to discrimination by denying him
cash award for superior achievement that all other SPSs at the facility had received for a 2015
inventory of the main vault. During that inventory, Agency management had temporarily
reassigned Complainant out of the facility’s main vault and temporarily placed him in the FP&F
section. Nevertheless, Complainant reasoned that he too merited the superior achievement award
for performing extra duties outside of the vault that freed up critical resources necessary for the
2015 inventory.

Next, Complainant states that Agency management arbitrarily denied his temporary duty requests.
Specifically, he maintains that the Agency discriminatorily denied him a 2016 detail to
Philadelphia. Complainant argues that his denial was based upon fictitious grounds of maintaining
appropriate staffing levels for scheduled inventories. Complainant stats that at the same time his
detail was denied, management permitted his coworkers to take leave and temporary assignments
elsewhere.

Finally, Complainant argues that the AJ should have granted his November 30, 2015 motion to
amend this EEO complaint. Complainant states that the motion to amend should have been
considered timely within “other reasons” of 29 CFR § 1614.105(a)(2). Complainant’s position is
that on November 20, 2015, the Agency’s Office for Civil Rights and Civil Liberties erroneously
dismissed a separate EEO complaint (Agency Case No.
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HS-CBP-24432-2015) regarding his suspension under 29 C.F.R. § 1614.107(a)(4). Complainant
disputes that he had elected to pursue that matter through the negotiated grievance procedure. He
admitted receiving a reduction in the suspension’s through verbal negotiations between his union
and the Agency. However, Complainant has argued he did not effectively elect the non-EEO union
grievance procedure for purposes 29 C.F.R. § 1614.301(a) because his union representative had
filed the written grievance untimely.

ANALYSIS AND FINDINGS

AJ’s Decision on Motion to Amend

EEOC Regulation 29 C.F.R. § 1614.106(d) provides that a complainant may file a motion with the
AJ to amend a complaint to include issues or claims like or related to those raised in the complaint.
We have reviewed the AJ’s decision to deny Complainant’s motion to amend his EEO complaint
to include Agency Case No. HS-CBP-24432-2015 regarding the Agency’s December 17, 2014,
proposed suspension and the actual suspension notice of July 16, 2015. We gave careful
consideration to Complainant’s argument that the untimely filing of the writing for his union
grievance somehow excused the delay of his request to amend the present EEO complaint.
Nevertheless, we have consistently held that AJ’s have broad discretion in conducting hearings
and matters such as discovery orders, scheduling (e.g., deadlines for submissions), and whether to
accept or reject a motion to amend. See 29 C.F.R. § 1614.109(e). Equal Employment Opportunity
Management Directive for 29 C.F.R. Part 1614 (“EEO-MD-110”) at 7-8 to 7-14 (revised Nov. 9,
1999). We cannot find that the AJ committed error or abused his discretion when denying
Complainant’s amendment motion. Here we find the AJ’s decision correct because Complainant
moved to amend months after the Agency filed its Motion for a Decision without a Hearing in
addition to months after the July 2015 suspension action at issue. See Steward v. U.S. Postal Serv.,
EEOC Appeal No. 0120101798 (Nov. 3, 2010) req. for recons. den’d, EEOC Request No.
0520110169 (Mar 1. 2011) and Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120130789
(Jun. 16, 2014).

Decision by Summary Judgment

We must determine whether it was appropriate for the AJ to have issued a decision without a
hearing on this record. The Commission’s regulations allow an AJ to issue a decision without a
hearing when he finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g).
This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the
Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is
appropriate where a court determines that, given the substantive legal and evidentiary standards
that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court’s function
is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id.
at 249. The evidence of the non-moving party must be believed at the summary judgment stage
and all justifiable inferences must be drawn in the non-moving party’s favor. Id. at 255.
4 0120172599

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. If a case can only be resolved by weighing conflicting evidence, issuing a
decision without holding a hearing is not appropriate.

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. While
Complainant has, in a very general sense, asserted that facts are in dispute, he has failed to point
with any specificity to particular evidence in the investigative file or other evidence of record that
indicates such a dispute. For the reasons discussed below, we find that, even construing any
inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could
not find in his favor. Therefore, we find that the AJ properly issued a decision here by summary
judgment.

We analyzed the merits of Complainant’s claims by applying the U.S. Supreme Court’s three-part
test from McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). First, this complainant had to
establish his prima facie case by presenting facts that, if unexplained, reasonably inferred
discrimination in the Agency’s employment decisions. See McDonnell Douglas, 411 U.S. at 802;
Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). Second, the burden shifted to the
Agency to articulate legitimate reasons for its challenged actions. See Texas Dep’t of Cmty.
Affairs v. Burdine, 450 U.S. 248, 253 (1981). Third, Complainant had to persuade this
Commission, by a preponderance of the evidence, that the Agency’s actions were attributable to
his Caucasian race or on account of his prior EEO activity. See St. Mary’s Honor Ctr. v. Hicks,
509 U.S. 502 (1993) and Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 143 (2000). If
the Agency has articulated a nondiscriminatory reason for an action, then we dispense with the
prima facie inquiry of Mc Donnell Douglas and proceed to the ultimate question as to whether
Complainant has shown, to a preponderance of evidence, that the Agency’s explanations were
pretexts to mask unlawful discriminatory motives. See U.S. Postal Serv. Bd. of Governors v.
Aikens, 460 U.S. 711,713-714 (1983).

We concur with the AJ’s determination that the Agency provided legitimate and nondiscriminatory
reasons for all actions that Complainant has alleged were discriminatory. The Agency stated it
transferred Complainant out of his assignment in the main vault and issued him “no contact”
instruction based on its investigation into whether Complainant had threatened physical violence
against another employee.

Regarding Complainant’s exclusion from the 2015 Superior Achievement Award, the Agency
stated that the award was given to those who had worked on the 2015 annual inventory in the main
vault. Complainant admitted his involvement with that particular inventory was limited to an
indirect supportive role because he was not working in the main vault during that period. The
Agency noted that Complainant had received the same award during those years that he was
working in the vault and did participate in the annual inventory.
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Regarding its denial of Complainant’s request to be detailed to Philadelphia, the Agency explained
that the Philadelphia detail conflicted with the March 2016 dates of an inventory that management
had already scheduled at the San Diego facility. Moreover, in terms of distance and duration, the
voluntary Philadelphia detail was not comparable to the other requests that management had
approved the other SPS’s temporary duty within the same region, for the SPS who took leave based
on family hardship, and for the SPS who had been selected for mandatory supervisory training.
The Agency has sufficiently explained its treatment of Complainant in a manner that was “specific,
clear, and individualized.” See Miller v. U.S. Postal Serv., EEOC Appeal No. 01A55387 (Jun. 9,
2006). Meanwhile, Complainant failed to persuade us the Agency’s reasons were pretextual; he
simply did not establish such “weaknesses, implausibilities, inconsistencies, incoherencies, or
contradictions” that were necessary to render the Agency’s proffered reasons unworthy of
credence. See Dalesandro v. U. S. Postal Serv., EEOC Appeal No. 01A50250 (Jan. 30, 2006).

CONCLUSION

Based on a comprehensive review of the entire record, to include all evidence and argument
therein, in addition to all that which has been submitted on appeal, we agree with the AJ’s factual
findings and on his conclusion that a hearing was not warranted. We AFFIRM the Agency’s final
order implementing the AJ’s decision without a hearing, finding no discrimination.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0617)

The Commission may, in its discretion, reconsider the decision in this case if 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.
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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:

en’s signature

Carlton M. Hadden, Director
Office of Federal Operations

December 20, 2018
Date