Ken M.,1 Complainant,v.Jeh Johnson, Secretary, Department of Homeland Security (Customs and Border Protection), Agency.

Equal Employment Opportunity Commission

Mar 11, 2016

0120141284 (E.E.O.C. Mar. 11, 2016)

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

Ken M.,1
Complainant,

v.

Jeh Johnson,
Secretary,
Department of Homeland Security
(Customs and Border Protection),
Agency.

Appeal No. 0120141284

Agency No. HS-CBP-00548-2013

DECISION

The Commission accepts Complainant’s appeal from the January 2, 2014 final Agency decision
(FAD) 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. The Commission’s review is de novo. For the following reasons,
the Commission AFFIRMS the FAD.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Customs and
Border Protection Agricultural Specialist at the Agency’s Port of Entry in St. Thomas, U.S.
Virgin Islands. On December 6, 2012, Complainant claimed that he suffered an allergic
reaction to mold found within the air conditioning system at the Airport. On December 7,
2012, Complainant submitted a request to his second-level supervisor (S2) to be reassigned to
the Seaport to alleviate his allergies. S2 forwarded his request to the Chief Customs and
Border Protection Officer (Chief) who oversaw Airport operations. Complainant’s request for
reassignment was not granted; however, the Chief contacted the Port Authority to replace
moldy ceiling tiles in the Airport.

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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On January 23, 2013, Complainant claimed that he inspected the baggage of a traveler when he
discovered prohibited food items. Complainant claimed that he had asked the traveler on two
occasions if she had any food or plant material to declare, to which she responded that she did
not. Upon discovering the prohibited food items, Complainant informed the traveler that he
was going to issue her a fine after he finished processing the rest of the passengers. A few
minutes later, a Supervisory Officer (S1) informed the passenger that she could leave and no
fine would be assessed. Complainant believed that this was a sign of disrespect and officers of
local descent would have received more support and respect in similar situations.

Agricultural Specialists were scheduled to rotate duty locations on a biweekly basis.
Complainant claims that he was originally scheduled to rotate out of the Airport and be
assigned to the Marine Terminal March 10, 2013, through March 24, 2013. Instead, his
schedule was changed resulting in him continuing to work at the Airport. Complainant alleges
that management knew about his allergies and changed his schedule to retaliate against him for
his prior EEO activity.

On or around April 5, 2013, S1 submitted an allegation to the Joint Intake Center that
Complainant bypassed Airport protocol when he boarded a plane to leave St. Thomas. On
April 17, 2013, management conducted an inquiry into the incident. The Area Port Director
and the San Juan Director of Field Operations reviewed the information collected during the
inquiry and decided to issue Complainant a Letter of Counseling on June 12 2013.
Subsequently, Complainant applied for the annual National Reassignment Opportunity for
positions at three locations: Savannah, Georgia; West Palm Beach, Florida; and Raleigh, North
Carolina. Complainant was not selected for any of the locations. Complainant contacted the
Minneapolis Hiring Center and learned that he was rated as ineligible for reassignment because
he had a “pending action” at the time of his application. Complainant believed that the Area
Port Director knew he had applied for the National Reassignment Opportunity and that he
intentionally kept the pending action open to ensure Complainant would be rated as ineligible.

On March 11, 2013 (and amended on June 26, 2013), Complainant filed a formal complaint
alleging that the Agency discriminated against him and subjected him to a hostile work
environment on the bases of national origin (Mainland United States) and in reprisal for prior
protected EEO activity when:

1. Agency management denied his request of December 7, 2012, for reassignment;

2. On January 23, 2013, Agency management did not permit Complainant to perform
his work as assigned when a supervisor told Complainant not to enforce an
agriculture violation;

3. From March 10, 2013, through March 24, 2013, Agency management changed
Complainant's work location from the Marine Terminal to the Airport; and

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4. On June 21, 2013, Complainant learned that allegations that he violated Airport
procedures on April 5, 2013, resulted in him being ineligible for reassignment
opportunities in Savannah, Georgia; Raleigh, North Carolina; and West Palm
Beach, Florida.2

At the conclusion of the investigation, Complainant was provided with a copy of the report of
investigation (ROI) and notice of his right to request a hearing before an Equal Employment
Opportunity Commission Administrative Judge (AJ). Complainant requested a FAD. In
accordance with Complainant's request, the Agency issued a FAD, pursuant to 29 C.F.R. §
1614.110(b).

In the FAD, the Agency determined that the alleged incidents were not sufficiently severe or
pervasive to establish a hostile work environment. Further, the Agency found that
management had articulated legitimate, nondiscriminatory reasons for its actions. Specifically,
as to claim (1), the record reflected that Complainant emailed the Office of Diversity and Civil
Rights seeking information about the reasonable accommodation process in January 2013, but
later notified the Office to disregard his email as the Union was addressing the issue. The
Chief Customs and Border Protection Officer affirmed that Complainant requested a transfer
because his allergies were bothering him. The Chief stated that he immediately contacted the
Port Authority to replace some moldy ceiling tiles in the area, the ceiling tiles in the area were
changed, and he then contacted Complainant regarding the situation. The Chief noted that
Complainant told him that he was taking allergy medication and his allergies were under
control.

With respect to claim (2), S1 stated that Complainant wanted to issue a penalty against a
hearing-impaired woman for carrying prohibited food items. S1 spoke with the passenger and
it was obvious that the passenger had extreme difficulty understanding what S1 was saying. S1
was not trained in sign language and felt it was unfair to penalize the passenger when the
Agency had not provided any accommodation to the passenger for her disability. S1 confirmed
that since there was no seizure, the items in question were not prohibited and would not
warrant a penalty. S1 stated that his decision was based on what he believed to be common
sense and discretion.

Regarding claim (3), the Acting Chief asserted that Complainant's schedule was not changed.
The officially posted schedule had Complainant assigned to the Airport; and an employee's
schedule is never official until it has been posted. The Acting Chief explained that another
employee (CW1) who rotated with Complainant had been temporarily assigned to the Seaport
for medical reasons. Thus, when it was time for the bi-weekly rotation and CW1 was
supposed to rotate into an Airport slot, the Agency swapped CW1 and Complainant to keep
2 The Agency dismissed an additional claim for failure to state a claim regarding management
providing a previously-issued Letter of Counseling to another port as part of Complainant’s
application for transfer. The Commission will consider the claim as background evidence in
support of Complainant’s overall hostile work environment claim.

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CW1 at the Seaport. The Acting Chief confirmed that this situation had occurred with all of
the employees in Complainant’s rotational group.

Finally, with respect to claim (4), the Minneapolis Hiring Center informed Complainant that he
was ineligible to participate under the NRO Announcement because he had a pending action at
the time of his application under the Announcement. The Area Port Director confirmed that
on April 5, 2012, S1 contacted the Joint Intake Center when Complainant allegedly bypassed
the Agency’s pre-departure inspection process and continued on his way to board a flight. The
San Juan Director of Field Operations began a management inquiry. After a review of the
inquiry results, the Director of Field Operations and the Area Port Director decided to issue
Complainant a Letter of Counseling.

The Agency concluded that Complainant failed to show that management’s reasons for its
actions were pretextual. As a result, the Agency found that Complainant had not been
subjected to discrimination, reprisal, or a hostile work environment as alleged. The instant
appeal followed.

CONTENTIONS ON APPEAL

On appeal, Complainant argues that he has provided sufficient evidence of discrimination and
that management officials committed perjury. Additionally, Complainant notes that the
Agency did not immediately remove the ceiling tiles near his work station. Further, with
respect to claim (2), Complainant contends that S1 embarrassed him and undermined his
authority in front of co-workers. Regarding claim (3), Complainant argues that the Agency
changed his schedule and work location to harass and retaliate against him. Finally, as to
claim (4), Complainant claims that he was denied reassignment based on a false and malicious
report. Accordingly, Complainant requests that the Commission reverse the FAD.

ANALYSIS AND FINDINGS

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).

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Therefore, 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, national origin or prior
protected EEO activity). Only if Complainant establishes both of those elements, hostility and
motive, will the question of Agency liability present itself.

As Complainant chose not to request a hearing, the Commission does not have the benefit of
an Administrative Judge's credibility determinations after a hearing. Therefore, the
Commission can only evaluate the facts based on the weight of the evidence presented. Here,
Complainant asserted that based on his national origin and prior protected EEO activity,
management continuously subjected him to a hostile work environment. The record supports
the Agency’s finding that, even assuming that the alleged incidents were sufficiently severe and
pervasive, there is no evidence that management’s actions were based on discriminatory or
retaliatory animus. For example, as to his reassignment request, the Chief confirmed that
while Complainant’s request for reassignment was not granted, he contacted the Virgin Island
Port Authority to replace the moldy ceiling tiles in the area to alleviate Complainant’s
allergies. ROI, at 117.3 Further, the Area Port Director noted that positions at the Airport
and Seaport are under the Bid and Rotation Process, and he is not able to move employees in
and out of those positions. Id. at 36. The Area Port Director added that Complainant could
have swapped with another employee or applied for a position for which he was qualified. Id.

Regarding claim (2), S1 stated that Complainant wanted to issue a penalty against a hearing
impaired woman, but S1 believed that it was unfair to penalize anyone due to a disability when
the Agency had not attempted to provide any accommodation. ROI, at 145. S1 added that
there was no seizure; therefore, the items in question were not prohibited and would not have
warranted a penalty. Id. As to claim (3), the Acting Chief denied that there was a “schedule
change;” rather, Complainant’s official schedule had him assigned to the Airport, not the
Marine Terminal. Id. at 129. The Acting Chief explained that CW1, who rotated with
Complainant, had to be assigned to the Marine Terminal. Id. Management reviewed rotation
slots prior to posting the official schedule to ensure that that CW1 was assigned to Seaport
duties, rather than the Airport. The Acting Chief noted that all of the employees in
Complainant’s rotational group have had their duties swapped to ensure this assignment. Id. at
129-30.

Finally, as to being ineligible for reassignment, the Area Port Director affirmed that the Joint
Intake Center received a report that Complainant bypassed airport protocol on April 5, 2013.
ROI, at 138. S1 confirmed that he contacted the Joint Intake Center after Complainant was
observed bypassing the Agency pre-departure inspection process and boarding a flight. Id. at
146. S1 stated that this was his responsibility as shift supervisor. Id. A management inquiry
3 The Commission notes that Complainant did not allege disability as a basis of discrimination
in this complaint, nor did he allege that he was denied a reasonable accommodation for a
disability.

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was conducted and the Area Port Director and San Juan Director of Field Operations decided
to issue Complainant a Letter of Counseling. Id. at 139. Thus, Complainant was ineligible for
reassignment at the time he applied due to the pending disciplinary action. Id. at 100, 107.

The Commission finds that Complainant failed to show that the Agency's actions were based
on discriminatory or retaliatory animus. In addition, to the extent that Complainant is alleging
disparate treatment with respect to his claims, the Commission finds that he has not shown that
the Agency's reasons for its actions were a pretext for unlawful discrimination or reprisal. As
a result, the Commission finds that Complainant was not subjected to discrimination, reprisal,
or a hostile work environment as alleged.

CONCLUSION

After a review of the record in its entirety, including consideration of all statements submitted
on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM
the Agency’s final decision because the preponderance of the evidence of record does not
establish that discrimination occurred.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)

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 or within
twenty (20) calendar days of receipt of another party’s timely request for reconsideration. 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, P.O. Box 77960, Washington, DC 20013. 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 request or opposition must also include proof of service on the other party.

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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

March 11, 2016
Date