Mark R. Segovia, Complainant,v.Janet Napolitano, Secretary, Department of Homeland Security, Agency.

Equal Employment Opportunity CommissionSep 9, 2009
0120071096 (E.E.O.C. Sep. 9, 2009)

0120071096

09-09-2009

Mark R. Segovia, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security, Agency.


Mark R. Segovia,

Complainant,

v.

Janet Napolitano,

Secretary,

Department of Homeland Security,

Agency.

Appeal No. 0120071096

Hearing No. 450-2006-00052X

Agency No. HS-05CBP-001462

DECISION

On December 18, 2006, complainant filed an appeal from the agency's

November 3, 2006 final order 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.

BACKGROUND

On February 9, 2004, complainant was hired as a Customs and Border

Protection Officer, GS-1895-07, assigned to the Brownsville Port of Entry

(POE) in Brownsville, Texas. Complainant's appointment was subject to

the successful completion of a two-year probationary period.

On April 1, 2005, complainant filed an EEO complaint alleging

that he was discriminated against on the bases of national origin

(Hispanic/non-Mexican), religion (Mormon), color (olive/light-skin),

and in reprisal for protected EEO activity when:

1. On June 12, 2004, while in training in Glynco, Georgia complainant

was sexually attacked by a coworker.

2. From June 2004, to January 22, 2005, complainant was repeatedly

called obscene and derogatory names, and he was the subject of rumors

that jeopardized his position.

3. On January 22, 2005, complainant was terminated from his employment.1

At the conclusion of the investigation, complainant was provided 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 June 23, 2006, the agency filed a motion for a

decision without a hearing. On July 10, 2006, complainant objected to the

agency's motion for a decision without a hearing. Over the complainant's

objections, the AJ assigned to the case granted the agency's motion and

issued a decision without a hearing on September 26, 2006.2

In her decision, the AJ found that complainant's communications with

agency management officials in October 2004, did not constitute protected

activity. Further, the AJ found the agency met its burden of proof by

articulating legitimate, non-discriminatory reasons for its actions

with respect to complainant's allegations of color, national origin,

religion, and reprisal discrimination. The AJ found complainant did

not meet his burden of proof of establishing with relevant, material and

admissible evidence that the agency's articulated reasons were pretext

for discrimination.

The agency subsequently issued a final order fully implementing the

AJ's decision. The agency determined complainant failed to prove that

he was subjected to discrimination as alleged.

On appeal, complainant contends that the agency retaliated against him

because he complained about the discrimination based on his religion,

color, national origin, and the hostile work environment to which he was

subjected. Complainant states he engaged in protected activities and

cites Title VII's anti-retaliation provision which forbids an employer

from discriminating against an employee because that individual "opposed

any practice" made unlawful by Title VII. Complainant states that on

June 12, 2004, while on training in Glynco, Georgia at the Federal

Law Enforcement Training Center (FLETC) he was sleeping on his back

and awoke to find one of his classmates (Co-worker X) standing over

him "attempting to place his testicles on [complainant's] forehead."

Complainant states that the next morning he immediately reported the

incident to his class supervisor, Person A. Complainant claims that

Person A told him that Co-worker X admitted what he did, apologized for

his actions, and said it would not happen again. Complainant states that

Person A told him not to worry about the incident and said to "let it go"

since they were so close to graduation.

Complainant states that upon returning to the Brownsville, Texas POE

around the last two weeks of June 2004, he began to be ridiculed and

harassed in regards to the Glynco incident by officers who had witnessed

the incident and by officers who were not in Glynco but who were informed

of the incident by officers who were there.

Complainant also claims that on a daily basis he was subjected to

harassing remarks regarding his religion, color, and national origin.

Complainant states that within a month of returning from Glynco

(June/July 2004), he reported the hostile work environment to Chief B.

Complainant contends that he told Chief B what had happened to him

at FLETC and that his co-workers at Brownsville were harassing and

discriminating against him based on his religion, color, and national

origin. Complainant states that most of the classmates in his training

program at FLETC were from Brownsville and continued to work with him

when he returned to Brownsville. Complainant does not remember the exact

date he talked to Chief B; however, he states that it was a month after

he returned from his training at FLETC in the summer of 2004.

Complainant also states that "on almost a daily basis" he would report the

harassment to his superiors. Specifically, complainant notes he reported

the hostile work environment many times to his immediate supervisor,

S1, and he requested that S1 grant complainant an immediate transfer

due to the hostile work environment. Complainant argues that since S1

refused to respond to the EEO Investigator's request for an affidavit,

this is indicative of "guilty knowledge." Complainant states that as a

result there is an issue of S1's credibility and claims he should have

been subject to cross-examination before the AJ.

Complainant states he reported the FLETC incident and the harassment to

Chief C in an October 27, 2004 memorandum. Complainant notes that Chief

C shared the information in the memorandum with CEO E, Chief B, Port

Director and Mission Support Chief. Complainant states that by October

27, 2004, all management officials had knowledge of the incident that

occurred at FLETC on June 12, 2004, and the hostilities that followed.

Complainant also notes that on December 21, 2004, he sent a letter to

the Port Director and Chief B in which he responded to a cease and desist

order issued in response to an allegation that complainant referred to a

fellow officer in a derogatory manner. In his letter, complainant states

that the allegations made against him were "in retaliation for the actions

that [he] has taken towards others (possibly their friends) that have made

[his] employment and experience here at SBPO hostile and unwelcome."

Complainant states that despite informing management on numerous

occasions of the hostile work environment he was being subjected to,

they did nothing and the hostility increased. Complainant states that he

was subject to an increasing retaliatory hostile work environment which

finally resulted in his termination, six months after he reported the

incident which occurred at FLETC on June 12, 2004. Complainant claims

he was terminated by the Director of Field Operations based on the

pretextual charges of co-workers and supervisors who were acting based

on retaliatory and discriminatory motives. Complainant claims that

the Director of Field Operations was the "cat's paw" of employees and

supervisors acting from discriminatory motives.

Complainant argues that he has complied with all time limits in filing

his complaint. He states that all his allegations are discriminatory acts

comprising his claim of a hostile work environment and therefore should

not be dismissed. He notes that the final adverse action of termination

is part of his hostile work environment claim and is a properly filed

distinct claim. Since his termination became effective on January 22,

2005, he argues his January 26, 2005 EEO Counselor contact was timely

made.

Complainant states that Co-worker Y's statement that he did not

call complainant about 90-95% of the names complainant mentioned,

is an admission that Co-worker Y did call complainant the remaining

percentage of discriminatory names alleged and thus, constitutes direct

evidence of discrimination. In addition to the name calling, complainant

contented he was subjected to "a litany of pretextual rumors" which he

contends ultimately led to his termination. Complainant contends that

the officers who spread these rumors against him should be identified

by the agency and subject to cross-examination at a hearing.

In response to complainant's appeal, the agency argues complainant

failed to establish a prima facie case of reprisal discrimination

since he failed to engage in protected activity. The agency notes that

complainant claims that he was "sexually attacked" at FLETC on June 12,

2004, when co-worker 1 tried to "place his testicles on [complainant's]

forehead." The agency states that although complainant reported the

incident to Person A the next morning, Person A states that complainant

referred to the incident as drunken horseplay and "did not at any time

refer to this incident as a sexual assault." The agency notes that

Person A spoke to the alleged perpetrator, who denied exposing himself.

The agency states that co-worker 3, present when the incident occurred,

also stated that co-worker 1 did not expose himself. The agency notes

that Person A states that he asked complainant if he wanted to pursue his

complaint or file an EEO complaint and complainant said he did not wish

to pursue the matter any further. The agency claims complainant did not

participate in protected activity prior to January 26, 2005, when he made

his initial EEO Counselor contact. Moreover, the agency contends that

complainant's January 26, 2005 contact with an EEO Counselor occurred

seven months after the incident at FLETC, and is therefore untimely.

The agency states that even if complainant participated in protected

activity, the deciding official, the Director of Field Operations,

was not aware of his participation at the time the decision was made to

terminate complainant. The agency notes that neither the Director of

Field Operations nor the Port Director had knowledge of the incident that

occurred at FLETC on June 12, 2004. Thus, the agency claims complainant

has not shown a nexus between the protected activity and the adverse

action.

With regard to complainant's hostile work environment claim, the agency

states that despite complainant's claims that he notified the Office of

Professional Responsibility and upper management that he was subjected to

a hostile work environment, complainant failed to allege that the hostile

work environment related to his color, religion, or national origin.

The agency contends that in his October 27, 2004 memorandum to Chief C,

there is no indication he suffered any type of actionable discrimination.

The agency also states that in another undated memorandum, to Chief D,

complainant refers to incidents and rumors in the workplace, but he does

not state that they are due to his color, religion or national origin.

The agency notes that complainant claimed that on October 27, 2004,

two officers approached him in a threatening manner after he allegedly

turned them into their supervisors for going to a Subway restaurant

during duty hours. Complainant also claimed that on November 15, 2004,

an officer sarcastically told complainant not to report him for stopping

to buy coffee on his way to work. Complainant also claimed that on

November 17, 2004, an officer said that he had "heard so much about

[complainant]! I don't want any trouble." The agency notes complainant

also alleges he was called names, but he does not give specific dates or

names of the employees who were allegedly involved. The agency determined

the alleged incidents of harassment were "petty slights and trivial

annoyances" and were not actionable. The agency states complainant

never reported to management that he was subjected to a hostile work

environment based on discrimination. The agency stated that even if

true, his "assertions show co-worker annoyance and displeasure at being

reported to management and not discrimination based on [complainant's]

color, religion or national origin."

Moreover, the agency claims it has articulated legitimate,

nondiscriminatory reasons for its termination: that complainant did not

meet the qualifications for continued employment in a law enforcement

position. Specifically, the agency noted his termination letter stated

he had a "fundamental lack of good judgment" and cites his actions in

drawing a firearm in a situation where it was not justified.

Finally, the agency argues complainant failed to initiate timely EEO

Counselor contact with regard to his harassment claim. The agency

notes that complainant alleges the harassment began when he returned

to the Brownsville POE in June 2004; however, he did not contact an EEO

Counselor until January 26, 2005.

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 EEOC Management

Directive 110, Chapter 9, � VI.A. (November 9, 1999) (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").

Harassment of an employee that would not occur but for the employee's

race, color, sex, national origin, age, disability, or religion is

unlawful. McKinney v. Dole, 765 F.2d 1129, 1138-1139 (D.C. Cir. 1985).

A single incident or group of isolated incidents will not be regarded

as discriminatory harassment unless the conduct is severe. Walker

v. Ford Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982). Whether the

harassment is sufficiently severe to trigger a violation of Title VII

[and the Rehabilitation Act] must be determined by looking at all the

circumstances, including the frequency of the discriminatory conduct,

its severity, whether it is physically threatening or humiliating, or

a mere offensive utterance, and whether it unreasonably interferes with

an employee's work performance. Harris v. Forklift Systems, 510 U.S. 17

(1993).

Complainant alleges that he was subjected to a hostile work environment.

To establish a prima facie case of a hostile work environment, a

complainant must show that: (1) s/he is a member of a statutorily

protected class; (2) s/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 the statutorily protected

class; and (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. Humphrey v. United States Postal Service, EEOC Appeal

No. 01965238 (October 16, 1998); 29 C.F.R. �1604.11.

In the case of co-worker harassment, an agency is responsible for acts

of harassment in the workplace where the agency (or its agents) knew or

should have known of the conduct, unless it can be shown that it took

immediate and appropriate corrective action. See Enforcement Guidance:

Vicarious Liability for Unlawful Harassment by Supervisors, No. 915.002

(June 18, 1999). The fifth element of a harassment claim, showing that

the agency knew or should have known of the harassment, addresses the

issue of whether the agency should be held liable for the existence of a

hostile work environment.3 Krzesinski v. United States Postal Service,

EEOC Appeal No. 0120082084 (September 9, 2008).

After a careful review of the record, the Commission finds the AJ erred

in finding there were no genuine issues of material fact in dispute.

In the present case, complainant alleges that beginning at the end

of June 2004, after his return from FLETC, coworkers began to harass

him by making comments about his religion, color, and national origin.

Complainant states that the harassers consisted of Customs and Border

Patrol Officers and K-9 Handlers. He states that the harassers knew

he was Mormon and made fun of his faith. He claims they called his

religious undergarments "funny underwear," called him "Mormon Boy," and

"Holier than Thou," and made other derogatory comments about his religion.

Complainant states that the harassers knew he was Hispanic and called

him the following names based on his color and national origin: "oreo,

coconut, pocho, pepper belly, [and] brown ass." In his affidavit a

Senior Inspector stated he found a note in complainant's work area

calling complainant a "pepper belly" and stated that complainant had

told him that co-worker Y, a K-9 Handler, called him "pepper belly."

Co-worker Y stated that he "would not ever call him about 90-95% of the

names he mentioned" but did admit he used the words "pepper belly."

Complainant states that "on a daily basis" Co-worker Y referred to

[complainant] as "fat boy, fat mother fucker, fat ass, faggot, fudge

packer, pillow bitter, dick sucker, stupid fucker."

Furthermore, complainant stated that when he would refer vehicles and/or

personnel that he suspected of unlawful activity, the vehicle and/or

people would either be allowed entry into the United States or returned

to Mexico without follow up by fellow officers. Complainant claims

that when asking K-9 Officers for assistance he would be ignored or told

that they were not willing to check vehicles that he had referred into

secondary for inspection. He claims that he asked for assistance from

K-9 Officers numerous times and would be ignored. Complainant also claims

that he was "subject to a litany of pretextual rumors (which significantly

contributed to the hostile work environment) that ultimately were the

basis for his termination." According to complainant the rumors included

claims that he used his badge to get into the movies free, he wore his

badge and sidearm when not at work, and that he drag raced his car.

Complainant contends that he reported the harassment to management

who failed to act on his reports. Specifically, complainant states

that he reported the harassment based on his religion, color and

national origin within in a month of returning from Glynco to Chief B.

Additionally, he states that he reported the hostile work environment

on repeated occasions to his immediate supervisor, S1, and states that

he requested an immediate transfer due to the hostile work environment.

Complainant also states he reported the hostile work environment to Chief

C in an October 27, 2004 letter. He states that on December 21, 2004,

he sent a letter to the Port Director and Chief B notifying management

about the hostile work environment. Complainant contends that he was

subject to retaliation and increased harassment as a result of his

repeated attempts to inform management of harassment and states that

this finally resulted in his termination. The Commission finds that

the termination is the culminating act of the alleged harassment.

Assuming the facts in favor of complainant, as would be necessary in

determining whether summary judgment is appropriate, we find the actions

alleged by complainant are sufficient to establish a prima facie case of

harassment based on complainant's religion, national origin, and color.

Complainant alleged that he notified management about the harassment,

but that management took no action, and that the harassment intensified

and culminated in his termination. On the other hand, management alleged

that complainant failed to notify it of the harassment. Specifically,

complainant stated that he notified Chief B approximately one month after

returning from Glynco about the harassment based on his protected classes.

In his affidavit, Chief B states he was not aware of the incidents

alleged. Chief B notes that he received an anonymous telephone call

from a "CBP" officer about Co-worker X "speaking in a derogatory manner

about some supervisors at the Port" and he states he told the caller to

provide a statement in writing. Chief B states he later learned the

caller was complainant and notes he was never provided a statement in

writing about the complaint.

Additionally, complainant states that on several occasions he notified

S1 that he was subjected to harassment based on his religion, color,

and national origin and he states as a result of the harassment he

requested to be transferred. We note that the EEO Investigator requested

an affidavit from S1 on "several occasions," but S1 "did not respond to

contacts by either the EEO Investigator or staff from the EEO Office."

We note, however, that the file contains a May 11, 2006 signed declaration

from S1 in connection with this case in which S1 states that he does not

recall complainant requesting a copy of surveillance video in connection

with the incident that occurred at "the entrance to the cargo lot at the

Brownsville POE on November 26, 2004." S1 does not make any statement

concerning whether or not complainant notified him that he was being

subjected to harassment based on his religion, color, and national origin.

The agency has not provided an adequate justification for the failure to

secure an affidavit from S1. We find genuine issues of material fact

are in dispute as to whether or not complainant notified management of

the harassment. Furthermore, the credibility of the management officials

and complainant is in dispute. The Commission has noted that when a

party submits an affidavit and credibility is at issue, "there is a need

for strident cross-examination and summary judgment on such evidence is

improper." Pederson v. Department of Justice, EEOC Request No. 05940339

(February 24, 1995). For these reasons, we find that the summary judgment

of the entire complaint was not appropriate in this case.

Given our disposition regarding issues (2) and (3), we do not address

the agency's contention that complainant did not initiate timely EEO

Counselor contact with regard to issue (1). We find that such arguments

are best remanded so that the AJ may have a chance to examine the record

and decide whether the issue was timely raised.

CONCLUSION

The agency's decision is VACATED and we REMAND the complaint to the

agency for further processing in accordance with the Order herein.

ORDER

The agency shall submit to the Hearings Unit of the EEOC's San Antonio

Field Office the request for a hearing within 15 calendar days of the

date this decision becomes final. The agency is directed to submit a

copy of the complaint file to the EEOC Hearings Unit within 15 calendar

days of the date this decision becomes final. The agency shall provide

written notification to the Compliance Officer at the address set forth

below that the complaint file has been transmitted to the Hearings Unit.

Thereafter, the Administrative Judge shall issue a decision on the

complaint in accordance with 29 C.F.R. � 1614.109 and the agency shall

issue a final action in accordance with 29 C.F.R. � 1614.110.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K1208)

Compliance with the Commission's corrective action is mandatory.

The agency shall submit its compliance report within thirty (30) calendar

days of the completion of all ordered corrective action. The report shall

be submitted to the Compliance Officer, Office of Federal Operations,

Equal Employment Opportunity Commission, P.O. Box 77960, Washington,

DC 20013. The agency's report must contain supporting documentation,

and the agency must send a copy of all submissions to the complainant.

If the agency does not comply with the Commission's order, the complainant

may petition the Commission for enforcement of the order. 29 C.F.R. �

1614.503(a). The complainant also has the right to file a civil action

to enforce compliance with the Commission's order prior to or following

an administrative petition for enforcement. See 29 C.F.R. �� 1614.407,

1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the complainant

has the right to file a civil action on the underlying complaint in

accordance with the paragraph below entitled "Right to File A Civil

Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action for

enforcement or a civil action on the underlying complaint is subject

to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999).

If the complainant files a civil action, the administrative processing of

the complaint, including any petition for enforcement, will be terminated.

See 29 C.F.R. � 1614.409.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1208)

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), 9-18 (November 9, 1999). 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.

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 (R0408)

This is a decision requiring the agency to continue its administrative

processing of your complaint. However, if you wish to file a civil

action, you have the right to file such action in an appropriate United

States District Court within ninety (90) calendar days from the date

that you receive this decision. In the alternative, you may file a

civil action after one hundred and eighty (180) calendar days of the date

you filed your complaint with the agency, or filed your appeal with the

Commission. 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. Filing a civil

action will terminate the administrative processing of your complaint.

RIGHT TO REQUEST COUNSEL (Z1008)

If you decide to file a civil action, and if you do not have or cannot

afford the services of an attorney, you may request from the Court that

the Court appoint an attorney to represent you and that the Court also

permit you to file the action without payment of fees, costs, or other

security. See Title VII of the Civil Rights Act of 1964, as amended,

42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended,

29 U.S.C. �� 791, 794(c). The grant or denial of the request is within

the sole discretion of the Court. Filing a request for an attorney with

the Court does not extend your time in which to file a civil action.

Both the

request and the civil action must be filed within the time limits as

stated in the paragraph above ("Right to File A Civil Action").

FOR THE COMMISSION:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

September 9, 2009

__________________

Date

1 Complainant originally included sexual orientation as a basis for his

complaint. At a pre-hearing conference on April 18, 2006, complainant

withdrew sexual orientation as a basis for his complaint.

2 Both complainant and the agency provided copies of the AJ's decision

on appeal and both copies of the decision contain pages 1, 2, 3 and 5.

The AJ was contacted for a copy of the decision; however, the AJ did not

have a copy of her final summary judgment decision. Thus, the record

does not contain page 4 of the AJ's decision.

3 The Commission notes that if the alleged incidents comprising

complainant's hostile work environment claim were pervasive, the agency

may be imputed with constructive knowledge of the conduct. Krzesinski

v. United States Postal Service, EEOC Appeal No. 0120082084 (September 9,

2008).

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0120071096

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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0120071096