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

Equal Employment Opportunity Commission

Dec 11, 2018

0120171847 (E.E.O.C. Dec. 11, 2018)

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

Martina S.,1
Complainant,

v.

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

Appeal No. 0120171847

Agency No. HSCBP000942016

DECISION

On April 25, 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
March 27, 2017, final decision concerning her 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. and Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. For the following reasons, the
Commission AFFIRMS the Agency’s final decision finding no discrimination.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Customs and Border
Patrol Officer, GS-1895-12 at the San Juan Field Office, Ponce Port of Entry in Puerto Rico.

On January 12, 2016, Complainant filed an EEO complaint alleging that the Agency subjected her
to a hostile work environment on the bases of sex (female), disability (eye, knee), and reprisal for
prior protected EEO activity under Title VII of the Civil Rights Act of 1964 and
Section 501 of the Rehabilitation Act of 1973 when:

1. On September 2, 2015, the Port Director (PD) changed her duty hours;

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. Between October 2015 and November 2015, she was not reimbursed for 3 hours of
annual leave and 24 hours of sick leave;

3. From November 17-30, 2015, she was not given enough time to complete her
background investigation questionnaire;

4. On November 30, 2015, she was told that the PD made comments that she was faking
her knee injury;

5. In early December 2015, management delayed in scheduling her to attend range
qualifications;

6. On December 30, 2015, she received her gun, but the PD did not return the ammunition;

7. On April 24, 2016, she learned that the Office of Workers’ Compensation Programs
(OWCP) still had not received her injury claim forms;

8. On May 4, 2016 and May 27, 2016, she was left with no back-up between 4:00 and
5:00 p.m.;

9. On May 4, 2016, she was asked to stay for overtime, but received less overtime than
another Customs and Border Protection Officer (CBPO-1);

10. On May 4, 2016, the PD assigned CBPO-1 to process a seizure instead of her;

11. On July 23, 2016, she was forced to work overtime; and

12. On November 21, 2016, she received a cease and desist letter.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the report
of investigation and notice of her 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).

On March 27, 2017, the Agency issued a final decision, finding no discrimination. With respect to
claims (1), (2), and (11), the Agency provided legitimate, nondiscriminatory reasons for its actions.
For claim (1), the Agency averred that Complainant’s duty hours were changed to the daytime
because she could not carry a shoulder weapon, which was a requirement for the night shift, due
to her light duty status. Regarding claim (2), the Agency explained that management offered to
adjust Complainant’s work schedule so that she could attend an appointment at home without using
annual leave, but she declined the offer. The Agency also averred that Complainant had to use sick
leave to attend appointments because she had depleted her OWCP reimbursement period.
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As for claim (11), the Agency explained that management instructed Complainant to work
overtime due to the operational needs of the Ponce POE. Management averred that other
employees also had to work overtime when needed. In its decision, the Agency found that
Complainant failed to prove by a preponderance of the evidence that any of management’s
articulated legitimate, nondiscriminatory reasons were pretext for discrimination.

The Agency analyzed claims (3) to (10) and (12) as discriminatory harassment. For these claims,
the Agency articulated legitimate, nondiscriminatory reasons to prove that the alleged incidents of
harassment were not related to Complainant’s sex, disability, or protected EEO activity.

With respect to claim (3), the Agency averred that management gave Complainant more than one
day to complete her paperwork.

For claim (4), the PD averred that he never accused Complainant of faking her knee injury.

As to claim (5), Complainant’s supervisors explained that they could not promptly schedule her to
attend range qualifications because the Agency used the firearm range of the Puerto Rico Police
Department (PRPD) and arrangements needed to be made the PRPD beforehand.

Regarding claim (6), the Agency averred that Complainant’s ammunition could not be located,
and, as such, management initiated an inquiry into the matter, which ultimately resulted in a
reminder to remove ammunition and magazines when taking possession of a service weapon.

For claim (7), the Agency explained that certain OWCP forms were not signed because an Injury
Compensation Specialist needed to first receive a complete pay analysis and calculations from the
Payroll Branch prior to signing her OWCP forms.

With respect to claim (8), the Agency averred that all officers, depending on the schedule, have
worked at the office alone between 4:00 p.m. and 5:00 p.m.

For claim (9), the Agency explained that CBPO-1 received higher pay for the overtime assignment
because he had to be called back to the office, which resulted in the Agency having to pay for the
callback and commute expenses in accordance with the collective bargaining agreement.

Regarding claim (10), the Agency averred that both Complainant and CBPO-1 were assigned to
process a seizure. The Agency explained that CBPO-1 initiated the paperwork for the seizure
because Complainant was on meal break. The Agency noted that both Complainant and CBPO-1
worked on the assignment together and were both paid overtime for their work.

For claim (12), the Agency indicated that a cease and desist letter was issued to Complainant
because a passenger complained about her, and that she was cleared of any wrongdoing after an
investigation.

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In finding no discrimination, the Agency also found that even if the allegations occurred as alleged,
Complainant did not show that management’s actions were sufficiently severe or pervasive to
constitute harassing behavior.

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”).

To establish a claim of hostile work environment, Complainant must show that: (1) she belongs to
a statutorily protected class; (2) she 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
her 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 Agency. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982).
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). Further, the incidents must have been “sufficiently severe
and 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); see also Oncale v.
Sundowner Offshore Services, Inc., 23 U.S. 75 (1998).

With regard to Complainant’s allegation that she was subjected to harassment, we will assume
arguendo that the events occurred as Complainant described and were unwanted. However, the
preponderance of the evidence does not show that the alleged instances of harassment had the
purpose or effect of unreasonably interfering with her work performance and/or creating an
intimidating, hostile, or offensive work environment. Complainant has also not shown that the
alleged instances of harassment were related to her protected bases. In so finding, we note that the
Agency articulated legitimate, nondiscriminatory reasons for the allegations that comprise her
hostile work environment claim. We agree with the Agency that the preponderance of the evidence
suggests that the alleged instances of harassment were related to Complainant’s job duties or her
conduct, rather than her protected characteristics.

Even if we treat claims (1), (2), and (11) as discrete acts of discrimination, we still find no
discrimination. We note that the Agency articulated legitimate, nondiscriminatory reasons for its
actions in these claims and that Complainant failed to show that these reasons were a pretext for
discrimination. Complainant has not shown that similarly situated persons were treated differently.
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The Commission has long held that an Agency has broad discretion to set policies and carry out
personnel decisions, and should not be second-guessed by the reviewing authority absent evidence
of unlawful motivation. See Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981);
Vanek v. Dep't of the Treasury, EEOC Request No. 05940906 (January 16, 1997). Based on the
totality of the record, we find that Complainant has failed to fulfill her burden of showing that the
Agency’s articulated reasons were pretext for discrimination. Finally, we note that Complainant is
not claiming she was denied a reasonable accommodation.

CONCLUSION

We AFFIRM the Agency’s decision finding no discrimination.

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.
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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

December 11, 2018
Date